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INDIGENOUS PEOPLES AS INTERNATIONAL LAWMAKERS
LILLIAN APONTE MIRANDA*
ABSTRACT
Through a transnational social movement that has capitalized
upon the politics of difference, local communities of indigenous
peoples have significantly participated in the construction of a
distinctive international legal identity and derivative framework of
human rights.
The ability of a traditionally marginalized
community to succeed in strategically facilitating the recognition of
an international legal identity and substantive reconstitution of
human rights precepts is a unique phenomenon that merits
attention. To that end, this Article addresses the role of indigenous
peoples in international human rights lawmaking. It argues that
indigenous peoples have played a significant role in changing the
legal landscape of human rights in ways that are not necessarily
captured by mainstream accounts of non-state actor participation
* Assistant Professor of Law, Florida International University College of Law.
This Article was selected for presentation at the “New Voices in Human Rights”
Panel for the 2009 Association of American Law Schools (“AALS”) Annual
Meeting, and I am grateful to Christiana Ochoa and Sarah Paoletti for their
consideration as well as to the audience members and co-panelists who provided
comments. I am also grateful to Karen Engle, Vasuki Nesiah, and Dennis Davis,
the facilitators of the Human Rights and Social Justice Writing Workshop at the
2010 Summer Institute for Global Law and Policy at Harvard Law School, and the
other members of the writing workshop for their comments, feedback, and
encouragement. I am thankful to the audience members and co-panelists who
provided comments on earlier versions of this Article at the 2010 Michigan State
University College of Law Junior Faculty Forum, the 2009 Stetson Florida Faculty
Scholarship Forum, 2008 Oregon Review of International Law Symposium on
“Legal Pluralism and Inequality,” and 2007 LatCrit Annual Conference on
“Critical Localities.” I would additionally like to thank my colleagues at the FIU
College of Law for their feedback during a workshop presentation of this paper. I
am also indebted to Jorge Esquirol, Hari Osofsky, Charles Pouncy, Ediberto
Roman, and Carlton Waterhouse for their valuable insights. This Article
benefitted from the excellent research assistance of Sophia Bodero, Natalie
Castellanos, Melanie Martinez, Erin Miller, and International Law Research
Librarian, Marisol Floren.
203
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in international norm-building and decision-making. It further
proposes, however, that the participation of indigenous peoples in
international human rights lawmaking continues to operate within
certain discursive and structural limitations. While indigenous
peoples’ participation may serve to lend greater legitimacy to
international human rights law and lawmaking processes, such
participation may not effectively deliver material gains. As a
result, continued advocacy on behalf of indigenous peoples must
acknowledge and respond to these challenges.
1.
INTRODUCTION
Today, indigenous peoples have a presence in the halls of the
United Nations and the Organization of American States. Victoria
Tauli-Corpuz, a member of the Igorot community from the
Philippines and Chairperson of the United Nations Permanent
Forum on Indigenous Issues, walks the halls of the United Nations
headquarters in New York on her way to an annual session of the
Permanent Forum.1 Carrie Dann, a member of the Western
Shoshone Tribe, appears with her attorney, Julie Fischel, and other
members from the Western Shoshone delegation before the
Committee on the Elimination of Racial Discrimination in Geneva.2
Hugo Jabini, a member of the Association of Saramaka Authorities
and its Paramaribo representative, sits before the Inter-American
Commission and provides testimony regarding the Saramaka
1 See Biography of Victoria Tauli-Corpuz, U.N. PERMANENT FORUM ON
INDIGENOUS
ISSUES,
http://www.un.org/esa/socdev/unpfii/en/member
_tauli.html (last visited Oct. 30, 2010) (providing detailed information on
Chairperson Tauli-Corpuz). The other members of the Permanent Forum
nominated by indigenous peoples include: Lars Anders-Baer, a member of the
Saami community from Sweden; Hassan Id Balkassm, an Amazigh member from
Morocco; Mick Dodson, a Yawuru member from Australia; Margaret Lokawua, a
Karimjong member from Uganda; Elisa Canqui Mollo, an Aymara member from
Bolivia; Pavel Sulyandziga, an Udege member from the Russian Federation; and
Tonya Gonnella Frichner, an “Onondaga Nation, Six Nations Iroquois
Confederacy Haudenosaunee” member from the United States. Members of the
United Nations Permanent Forum on Indigneous Issues, U.N. PERMANENT FORUM ON
INDIGENOUS ISSUES, http://www.un.org/esa/socdev/unpfii/en/members.html
#members_08-10 (last visited Oct. 30, 2010).
2 See Western Shoshone, THE UNIV. OF ARIZ. JAMES E. ROGERS COLLEGE OF LAW
INDIGENOUS PEOPLES LAW AND POLICY PROGRAM, http://www.law.arizona.edu
/depts/iplp/advocacy/shoshone/index.cfm?page=advoc (last visited Oct. 30,
2010) (discussing the advocacy efforts of Mary and Carrie Dann, two Western
Shoshone grandmothers, before international human rights bodies).
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people’s efforts to protect their lands and resources from mining
and logging companies.3
***
Over the past forty years, indigenous peoples have played an
increasing role in global governance, particularly in processes of
international lawmaking.4
Through a transnational social
movement that has capitalized upon the politics of difference,
indigenous peoples have participated significantly in the
construction of a distinctive international, legal identity and
derivative framework of human rights.5
The ability of a
traditionally marginalized community to succeed in strategically
facilitating the recognition of an international legal identity and
substantive reconstitution of human rights precepts is a unique
phenomenon that merits attention.
There is a continuously evolving stream of international law
literature that contests the orthodox taxonomy of international
lawmaking as exclusively statist or state-centered and
acknowledges the varying participatory roles of non-state actors.6
However, this literature does not address indigenous peoples’
participation in the creation of a distinctive international legal
identity and derivative framework of human rights.7
For
3 See Saramaka People v. Suriname, Preliminary Objections, Merits,
Reparations, and Costs, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶64 (Nov. 28, 2007)
(noting that Hugo Jabini testified regarding “the Saramaka people’s efforts to
protect their land and resources, their alleged attempts to settle the case with the
State, and their methods for documenting traditional Saramaka use of the
territory”).
4 See generally S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW
56–72 (2d ed. 2004) (discussing indigenous peoples’ increasing representation,
status, and rights at the international scale).
5 See infra Part 3 (discussing indigenous peoples’ participation in
international lawmaking). This Article does not focus on the classic concept of
“indigenousness,” which is “ultimately based on Eurocentric notions of cultural
hierarchy, according to which ‘indigenous peoples’ occupied the lower stages on a
single scale of ‘civilization.’”
For an analysis of the classic concept of
“indigenous,” see LUIS RODRÍGUEZ-PIÑERO, INDIGENOUS PEOPLES, POSTCOLONIALISM,
AND INTERNATIONAL LAW: THE ILO REGIME (1919–1989) 338–41 (2005). Rather, this
Article is concerned with the contemporary legal construction of indigenous
peoples, “denoting culturally distinct groups within the political framework of
independent states.” Id. at 338; see also ANAYA, supra note 4, at 57–58 (describing
conferences through which indigenous peoples have contributed to the
formulation of a transnational identity and which have led indigenous peoples to
coordinate their contemporary demands).
6 See infra Part 2.1.
7 See infra Part 2.2.
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indigenous peoples, participation in international human rights
lawmaking is a means to the realization of claims that require the
restructuring of power relationships among states, non-state actors,
and local communities.8 Specifically, such participation is part of a
strategy aimed at shifting the balance of power in contested
domestic, political struggles stemming from claims to increased
protection of cultural practices, greater control over ancestral lands
and resources, and ultimately, the meaningful exercise of selfdetermination.9
Accordingly, this Article focuses on the participation of
indigenous peoples in international human rights lawmaking and
seeks to answer the following questions: (1) What circumstances
have facilitated indigenous peoples’ participation in international
human rights lawmaking? (2) Through what processes have
indigenous peoples participated in international human rights
lawmaking? (3) How have indigenous peoples contributed to the
indigenous peoples’ category and to a derivative framework of
human rights? (4) What are the implications of such participation,
not only with respect to the constitution of international law, but
also with respect to the continued advancement of indigenous
peoples’ claims?
Ultimately, does indigenous peoples’
participation in international human rights lawmaking reveal a
space of contestation that could lead to the use of international
human rights law as a means of social transformation for
indigenous peoples? What are the possibilities? What are the
challenges?
To that end, Part 2 examines existing literature regarding the
role of non-state actors in international lawmaking as a means of
8 See Lillian Aponte Miranda, Uploading the Local: Assessing the Contemporary
Relationship Between Indigenous Peoples’ Land Tenure Systems and International
Human Rights Law Regarding the Allocation of Traditional Lands and Resources in Latin
America, 10 OR. REV. INT’L L. 419, 421–22 (2008) (suggesting that indigenous
peoples have strategically engaged in human rights litigation at the international
level with respect to claims of ownership, occupancy, use, and control of ancestral
lands as a means of challenging domestic law).
9 See, e.g., S. James Anaya, The Maya Petition to the Inter-American Commission
on Human Rights: Indigenous Land and Resource Rights and the Conflict over Logging
and Oil in Southern Belize, in GIVING MEANING TO ECONOMIC, SOCIAL, AND CULTURAL
RIGHTS 180-85 (Isfahan Merali & Valerie Oosterveld eds., 2001) (suggesting that
the Maya’s pursuit of international recourse against the state of Belize for granting
logging and oil exploration concessions to multinational corporations on the
Maya’s traditional lands constituted an “attempt[] to use the sphere of
international human rights law to . . . shift the balance of power and terms of
debate in their favor”).
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contextualizing an account of indigenous peoples’ participation in
human rights lawmaking. Part 3 analyzes the informal and formal
norm-building and decision-making processes utilized by
indigenous peoples to participate in transnational identity building
and the substantive reconstitution of international human rights
law. Part 4 evaluates the implications of indigenous peoples’
participation in international human rights lawmaking from two
distinct vantage points: (1) the constitution of international human
rights law, and (2) the continued advancement of indigenous
peoples’ claims.
Ultimately, this Article argues that indigenous peoples have
played a significant role in changing the legal landscape of human
rights in ways that are not necessarily captured by mainstream
accounts of non-state actor participation in international normbuilding and decision-making.
Indigenous peoples have
employed a multi-layered approach to international human rights
lawmaking that includes participation in both informal
mechanisms of knowledge production and norm-generation as
well as more formal decision-making structures. Indigenous
peoples have forever changed the landscape of human rights
through their participatory efforts by contributing to the
recognition of a distinctive indigenous peoples category and
derivative framework of human rights. However, this Article
further proposes that the participation of indigenous peoples in
international human rights lawmaking continues to operate within
certain discursive and structural limitations. While indigenous
peoples’ participation may serve to lend greater legitimacy to
international human rights law and lawmaking processes, such
participation may not serve to effectively deliver material gains.
As a result, continued advocacy on behalf of indigenous peoples
must acknowledge and respond to these challenges.
2.
ACCOUNTING FOR INDIGENOUS PEOPLES’ PARTICIPATION IN
INTERNATIONAL LAWMAKING
There are two primary streams of literature pertaining to
indigenous peoples’ participation in international lawmaking.10
10 As referred to in this Article, international lawmaking involves
international processes of norm-building and decision-making aimed at
determining the content of international law. There has been a recognition that,
broadly conceived, international processes of norm-building and decision-making
may result in the production of both “hard” and “soft” international law. See
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One stream addresses non-state actor participation in international
While this literature includes some passing
lawmaking.11
references to the participatory role of indigenous peoples, it does
not provide a discrete narrative of indigenous peoples’ role in
Dinah Shelton, Normative Hierarchy in International Law, 100 AM. J. INT’L L. 291,
319–23 (2006) (discussing the “dynamic interplay” between “hard law” and “soft
law”).
11 See generally Myres S. McDougal & W. Michael Reisman, The Prescribing
Function in World Constitutive Process: How International Law is Made, 6 YALE STUD.
WORLD PUB. ORD. 249 (1980) (conceiving of international lawmaking as a process
of authoritative and controlling decision-making within the global community
that includes the participation of non-state actors); W. Michael Reisman et al., The
New Haven School: A Brief Introduction, 32 YALE J. INT’L L. 575 (2007) (providing an
overview of the New Haven school of thought); see also José Alvarez, Governing the
World: International Organizations as Lawmakers, 31 SUFFOLK TRANSNAT’L L. REV. 591,
591 (2008) [hereinafter Alvarez, Governing the World] (discussing the role of
international organizations in international lawmaking); José Alvarez,
International Organizations: Then and Now, 100 AM. J. INT’L L. 324, 324 (2006)
(discussing how the evolution of international organizations has led to an increase
in the institutionalization of international law); Keith Aoki et al., (In)visible Cities:
Three Local Government Models and Immigration Regulations, 10 OR. REV. INT’L L. 453,
476 (2008) (discussing, in part, the role of cities as “global legal actors in the
international legal regime”); Steve Charnovitz, Nongovernmental Organizations and
International Law, 100 AM. J. INT’L L. 348 (2006) (discussing how nongovernmental
organizations have successfully lobbied for increased participation in
international lawmaking processes); Duncan B. Hollis, Why State Consent Still
Matters—Non-State Actors, Treaties, and the Changing Sources of International Law, 23
BERKELEY J. INT’L L. 137, 140 (2005) (evaluating “whether the role non-state actors
play in making, applying, and interpreting treaties has changed who is truly
authorized to form treaties”); Janet Koven Levit, A Bottom-Up Approach to
International Lawmaking: The Tale of Three Trade Finance Instruments, 30 YALE J. INT’L
L. 125 (2005) [hereinafter Levit, A Bottom-Up Approach] (proposing that public and
private practitioners play a role in “bottom-up” international lawmaking); Janet
Koven Levit, Bottom-Up International Lawmaking: Reflections on the New Haven
School of International Law, 32 YALE J. INT’L L. 393 (2007) [hereinafter Levit,
Reflections on the New Haven School] (analyzing bottom-up international
lawmaking through the lens of the New Haven school of thought); Julie Mertus,
From Legal Transplants to Transformative Justice: Human Rights and the Promise of
Transnational Civil Society, 14 AM. U. INT’L L. REV. 1335 (1999) [hereinafter Mertus,
Transnational Civil Society] (detailing how “[n]on-state actors and transnational
networks now play a greater role in the promotion and protection of human
rights in local, regional, and international arenas”); Julie Mertus, Kitchen Table
Lessons: Why the Local Matters, 94 AM. SOC’Y INT’L L. PROC. 307 (2000) [hereinafter
Mertus, Kitchen Table] (discussing how social movements may impact the
development and internalization of international norms); Christiana Ochoa, The
Individual and Customary International Law Formation, 48 VA. J. INT’L L. 119 (2007)
(discussing the role of the individual in customary international lawmaking); Hari
M. Osofsky, The Geography of Climate Change Litigation: Implications for
Transnational Regulatory Governance, 83 WASH. U. L. Q. 1789, 1855 (2005) (proposing
that “governmental actors are playing a critical role in shaping a transnational
regulatory process” with respect to climate change).
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international lawmaking nor comprehensive treatment regarding
the normative implications of such participation.12 Another stream
focuses on indigenous peoples’ status and rights under
international human rights law.13 While a subset of this literature
addresses indigenous peoples’ role in human rights advocacy and
norm-building, it nevertheless does not comprehensively address
the normative implications of indigenous peoples’ participatory
role.14 This Article seeks to bridge, and build upon, these two
streams of literature to provide a discrete narrative of indigenous
peoples’ participation in international lawmaking and a more
See infra Part 2.1.
See, e.g., Leonardo J. Alvarado, Prospects and Challenges in the Implementation
of Indigenous Peoples’ Human Rights in International Law: Lessons from the Case of
Awas Tingni v. Nicaragua, 24 ARIZ. J. INT’L & COMP. L. 609, 609 (2007) (analyzing
the Inter-American Court on Human Rights’ recognition of indigenous peoples’
communal property rights in the Awas Tingni case and suggesting that
“indigenous peoples are increasingly utilizing international human rights
institutions to defend their lands, territories, and cultures, and for their survival”);
S. James Anaya, Indian Givers: What Indigenous Peoples Have Contributed to
International Human Rights Law, 22 WASH. U. J.L. & POL’Y 107, 111 (2006) (detailing
the contributions of indigenous peoples to human rights law); Russel Lawrence
Barsh, Indigenous Peoples in the 1990s: From Object to Subject of International Law?, 7
HARV. HUM. RTS. J. 33 (1994) (analyzing international trends in the 1990s and
concluding that indigenous people have begun to develop a distinctive
international identity as well as a distinctive set of rights in international law);
Erik B. Bluemel, Separating Instrumental from Intrinsic Rights: Toward an
Understanding of Indigenous Participation in International Rule-Making, 30 AM.
INDIAN L. REV. 55, 57 (2005–2006) (arguing for “a more coherent framework
advanced for the debate about group participatory rights, more legitimacy
provided to group participation, and an enhanced understanding of what forces
drive participation in international law” through an analysis of indigenous
peoples’ participation in the international arena); Elena Cirkovic, SelfDetermination and Indigenous Peoples in International Law, 31 AM. INDIAN L. REV. 375,
375–78 (2006–2007) (analyzing the potential of utilizing international human
rights law to address indigenous peoples’ claims for self-determination); Robert T.
Coulter, Using International Human Rights Mechanisms to Promote and Protect Rights
of Indian Nations and Tribes in the United States: An Overview, 31 AM. INDIAN L. REV.
573 (2006–2007) [hereinafter Coulter, International Human Rights Mechanisms]
(suggesting that international legal procedures offer Native Americans an
effective means through which to expand their rights); Robert T. Coulter, The U.N.
Declaration on the Rights of Indigenous Peoples: A Historic Change in International Law,
45 IDAHO L. REV. 539, 539 (2009) [hereinafter Coulter, The U.N. Declaration] (calling
the declaration historic because it contains “legal elements never before included
in a major human rights instrument”); Maivân Clech Lâm, Making Room for Peoples
at the United Nations: Thoughts Provoked by Indigenous Claims to Self-Determination,
25 CORNELL INT’L L.J. 603, 621 (1992) (proposing that the U.N. provide “fora for
indigenous people and other ethnic groups to question state decisions and
arrangements that affect them”).
14 See infra Part 2.2.
12
13
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comprehensive discussion regarding the implications of such
participation.15
2.1. International Lawmaking and Non-State Actors
Viewed through a positivist lens, international law is
ultimately produced through state consent.16 Pursuant to such a
perspective, states are deemed the subjects of international law,
and thereby constitute the proper participants in processes of
international lawmaking.17 However, international lawmaking has
alternatively been understood as a complex and dynamic process
of decision-making that includes the participation of non-state
actors.18 Viewed through such alternative lens, non-state actors
“play important roles in influencing decision outcomes.”19 In
effect, such a view not only permits, but requires, a robust analysis
of non-state actors’ participation in international lawmaking.
International law scholars, whether explicitly or implicitly
drawing upon such an alternative conception of international
lawmaking, have developed a subset of literature that identifies,
describes, and questions the role of non-state actors in international
norm-building and decision-making processes.20 These analyses
15 While this Part provides a general overview of the two paradigmatic
streams of literature that impact the analyses in this Article, it is not meant to
exhaustively capture any particular author’s scholarly contribution.
16 See Harlan Grant Cohen, Finding International Law: Rethinking the Doctrine of
Sources, 93 IOWA L. REV. 65, 83 (2007) (“State consent could provide a positivist
basis for international law in the absence of a sovereign and could be used as a
scientific criterion of investigation.”).
17 Id. at 83–85. In this Article, I treat analyses of international lawmaking as
related to, but nevertheless distinct from, analyses of state compliance with
international law. For analyses that focus more directly on state compliance with
international law and the role of non-state actors, see generally Harold Hongju
Koh, Is There a “New” New Haven School of International Law?, 32 YALE J. INT’L L. 559
(2007); Harold Hongju Koh, Transnational Legal Process, 75 NEB. L. REV. 181 (1996);
Harold Hongju Koh, The Value of Process, 11 INT’L LEGAL THEORY 27 (2005).
18 See generally McDougal & Reisman, supra note 11; Reisman et al., supra note
11; see also Symposium, Foreward to The “New” New Haven School: International
Law—Past, Present, & Future, 32 YALE J. INT’L L. 299 (2007) (discussing the history,
impact, and future of the New Haven School on international legal theory and
scholarship).
19 Reisman et al., supra note 11, at 578.
20 See generally Levit, Reflections on the New Haven School, supra note 11
(conveying the importance of “bottom-up” international lawmaking); Mertus,
Kitchen Table, supra note 11 (exploring how social movements wield influence over
international norms); Mertus, Transnational Civil Society, supra note 11 (arguing
that non-state actors play a role in protecting human rights).
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offer a thicker description of non-state actors’ participation, lend
greater philosophical and theoretical coherency to non-state actors’
operational realities, and make important normative contributions
regarding the role of non-state actors in international lawmaking.21
As a whole, the normative thrust of existing literature focuses on
the effects of non-state actor participation on the international legal
regime. For example, international law scholars’ normative
insights address how non-state actor participation impacts the
appropriate scope of international law,22 the efficiency and
legitimacy of alternative approaches to making international law,23
and the need to, and potential for, democratizing international
lawmaking processes.24
More specifically, at the macro-level, attention has been
devoted to distinguishing between non-state actors’ participation
in “top-down” versus “bottom-up” lawmaking processes.25 At a
more micro-level, scholars have addressed the participatory role of
a variety of non-state actors. In this latter vein, scholars have
canvassed the role of supra-national, transnational, and subnational non-state actors in international lawmaking. At the supra21 See generally Levit, A Bottom-Up Approach, supra note 11 (proposing that
public and private practitioners play a role in “bottom-up” international
lawmaking); Mertus, Kitchen Table, supra note 11; Mertus, Transnational Civil
Society, supra note 11.
22 See, e.g., Ochoa, supra note 11, at 136 (critiquing foundational literature that
discusses, but dismisses, the role of non-state actors in the formation of customary
international law); Osofsky, supra note 11, at 1797–80 (surveying the impact of
corporations on international lawmaking); Reisman et al., supra note 11, at 578
(providing that “participants in any decision process include those formally
endowed with decision competence, such as executives, legislators and judges,
and all those other actors who, though not endowed with formal competence,
may nonetheless play important roles in influencing decision outcomes”).
23 See generally Levit, A Bottom-Up Approach, supra note 11, at 209 (suggesting
that bottom-up international lawmaking is a legitimate alternative route to law in
the realm of international trade and finance where most scholarship focuses on
treaty-based institutions).
24 See Mertus, Transnational Civil Society, supra note 11, at 1361 (noting that
global democratic governance has yet to be fully realized). Professor Mertus
focuses on the paradox between the “existence of a robust civil society as a
precondition to democratic governance,” and the way that “transnational civil
society may undermine this norm of democratic governance since voluntary
associations are wholly unaccountable to any sovereign and, thus, may act in a
manner contrary to democratic principles.” Id. at 1340.
25 See Levit, Reflections on the New Haven School, supra note 11, at 408–10
(noting that literature discussing “bottom-up” international lawmaking has
contributed distinct insights on the norm-building processes that homogenous,
sub-national groups may engage in).
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national scale, much analysis has been devoted to the role of
intergovernmental organizations, such as the International
Monetary Fund, the World Bank, and the World Trade
Organization, as participants in international lawmaking.26
Attention has also been devoted to the role of transnational
entities, such as non-governmental organizations (“NGOs”),27
transnational civil society,28 and transnational networks.29 The
literature further includes specific treatment of participation by
sub-national public entities, such as autonomous non-state
groupings30 and cities,31 as well as private entities, such as
corporate actors,32 private practitioners,33 and individuals.34
While some of this literature includes passing references to the
participatory role of indigenous peoples, it does not provide a
discrete narrative of indigenous peoples’ role in international
lawmaking nor comprehensive treatment regarding the normative
26 See generally Alvarez, Governing the World, supra note 11 (discussing how
the creation of inter-governmental organizations leads to fundamental changes in
international law); Alvarez, International Organizations: Then and Now, supra note
11 (discussing the institutionalization of international law through the
establishment of international organizations).
27 See, e.g., Charnovitz, supra note 11 (evaluating the influence that nongovernmental organizations exert over international law); Dinah Shelton,
Protecting Human Rights in a Globalized World, 25 B.C. INT’L & COMP. L. REV. 273
(2002) (arguing that globalization has increased the involvement of non-state
actors in human rights issues with the resulting paradox that human rights are
promoted, yet, at the same time, violated in “unforeseen ways”).
28 See generally Mertus, Transnational Civil Society, supra note 11 (proposing
that transnational civil society plays an increased role in the promotion of human
rights).
29 See generally ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 239–40 (2004)
(discussing the ability of transnational networks to aggregate policy).
30 See generally Hollis, supra note 11 (discussing sub-state actor participation).
31 See, e.g., Osofsky, supra note 11, at 1806–07 (noting that cities, by serving as
petitioners in litigation, can advance greater regulation in certain contexts). See
generally Aoki, supra note 11 (surveying how cities have injected themselves into
the international sphere, particularly in international human rights lawmaking).
32 See, e.g., David Kinley & Junko Tadaki, From Talk to Walk: The Emergence of
Human Rights Responsibilities for Corporations at International Law, 44 VA. J. INT’L L.
931, 957–58 (2004) (discussing how transnational corporations help shape informal
social norms that impact domestic and international law).
33 See, e.g., Levit, Reflections on the New Haven School, supra note 11, at 411
(proposing that private actors, which include private individuals in addition to
NGOs and corporations, “do not merely exert influence on . . . lawmaking
processes but in fact constitute such processes and make law themselves”).
34 See generally Ochoa, supra note 11 (discussing how individuals have the
capacity to influence customary international law).
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implications of such participation.35 For example, at the macrolevel, a narrative of indigenous peoples’ role in international
lawmaking defies a “top-down/bottom-up” dichotomy.
Indigenous peoples’ participation reflects a bottom-up
transnational social movement that engages both informal
mechanisms of knowledge production and norm-generation and
formal, top-down decision-making structures with the aim of
establishing indigenous peoples’ distinctiveness. More specifically,
sub-national, identity-based local communities—such as the Awas
Tingni in Nicaragua, U’wa in Colombia, and Western Shoshone in
the United States—resist local challenges that present affronts to
the exercise of cultural practices, control over lands and resources,
or other forms of exercising meaningful self-determination. As a
means of furthering such resistance to local circumstances, these
communities engage informal mechanisms of transnational
knowledge production such as transnational networks and nongovernmental organizations. They further engage formal channels
of decision-making through advocacy before international and
regional human rights bodies. Indigenous communities’ multilayered participatory efforts focus on strategically identifying core
indigenous norms and values that distinguish indigenous
communities from other groups.
These efforts serve as a
foundation for the recognition of a distinctive transnational
identity and framework of rights.
Furthermore, at the micro-level, indigenous peoples’
participatory role in international lawmaking is not appropriately
cabined within existing categories of analysis. Indigenous peoples
may, indeed, constitute members of non-governmental
organizations, participate in transnational civil society, organize as
transnational public networks, function as autonomous non-state
groupings, and bear individual identities.
Nevertheless,
indigenous peoples are best understood as comprising a loose
transnational network composed of sub-national, identity-based,
local communities.
Accordingly, indigenous peoples’ role in international
lawmaking merits greater attention. An account of indigenous
peoples’ role in international human rights lawmaking is a
necessary component of the broader narrative of non-state actor
participation in international lawmaking. Moreover, shifting focus
35
See infra Part 2.2.
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to the participatory role of a traditionally marginalized community
broadens normative categories of analysis. Normative questions
arise more explicitly not only with respect to what such
participation does to, or for, international law, but also with
respect to what such participation does to, or for, indigenous
peoples.
2.2. International Lawmaking and Indigenous Peoples
The literature that addresses indigenous peoples’ status and
rights under international human rights law has devoted some
attention to indigenous peoples’ participatory role in human rights
advocacy and norm-building. However, such analyses are not
explicitly tied to the broader literature on non-state actor
participation in international lawmaking. Accordingly, they do not
purport to identify or develop a distinctive narrative describing
how indigenous peoples’ participation in international lawmaking
fits within the broader literature concerning non-state actors. They
also do not develop the normative implications of indigenous
peoples’ participation with respect to the advancement and
realization of indigenous peoples’ claims.
Drawing on the dichotomy between “subjects” and “objects” of
international law, some literature claims that indigenous peoples
now constitute “subjects of international law.”36 While this
conclusion suggests that indigenous peoples bear a personality
under international law commensurate with participation in
international lawmaking, these references do not develop a
discrete narrative of indigenous peoples’ participation in
international lawmaking or the implications of such participation.37
36 See, e.g., Barsh, supra note 13 (proposing that indigenous peoples be viewed
as “subjects” rather than objects of international law); Cirkovic, supra note 13
(examining “the struggle over the recognition of indigenous peoples as subjects
under public international law”); Lâm, supra note 13 (arguing that international
law “may have to be reconceived . . . to include peoples as well as states as its
rightful subjects”).
37 See Barsh, supra note 13, at 33–35 (tracing the growing acceptance of
indigenous peoples’ collective identity and distinct rights in international law and
practice and arguing that explicit recognition of indigenous peoples’ right to selfdetermination would establish indigenous peoples as “subjects of international
legal rights and duties rather than mere objects of international concern”);
Cirkovic, supra note 13, at 375–76 (examining “the struggle over the recognition of
indigenous peoples as subjects under public international law”); Lâm, supra note
13, at 621 (proposing that indigenous peoples be recognized as “subjects of
international law competent to represent their interests in the international
arena”).
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Some analyses go further by implicitly providing support for,
and important elements of, an independent narrative concerning
indigenous peoples’ role in international human rights
lawmaking.38 For example, there is ample literature that addresses
indigenous peoples’ human rights advocacy with respect to their
claims before international and regional human rights bodies.39
This literature identifies and analyzes the doctrinal sources of
indigenous peoples’ human rights arguments, and further,
suggests that indigenous peoples have been at the forefront of such
advocacy efforts.40 Additionally, there is literature that discusses
the mechanics of navigating the human rights institutional regime
as a means of providing helpful guidance on appropriate avenues
of advocacy.41 This literature focuses on the international and
regional human rights forums that provide indigenous peoples
38 See generally ANAYA, supra note 4; S. James Anaya & Robert A. Williams, Jr.,
The Protection of Indigenous Peoples’ Rights Over Lands and Natural Resources Under
the Inter-American Human Rights System, 14 HARV. HUM. RTS. J. 33 (2001) (proposing
that “the Inter-American human rights system recognizes and protects indigenous
peoples’ rights over their traditional lands and resources, and that it establishes
for states corresponding international legal obligations”); Coulter, The U.N.
Declaration, supra note 13, at 539 (calling the U.N. Declaration on the Rights of
Indigenous Peoples historic because it contains “legal elements never before
included in a major human rights instrument”); Benedict Kingsbury, Reconciling
Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International
and Comparative Law, 34 N.Y.U. J. INT’L L. & POL. 189, 189–90 (2001) (observing that
indigenous peoples’ legal claims rest on five distinct conceptual structures: “(1)
human rights and non-discrimination claims; (2) minority claims; (3) selfdetermination claims; (4) historic sovereignty claims; and (5) claims as indigenous
peoples, including claims based on treaties or other agreements between
indigenous peoples and states”); Siegfried Wiessner, Rights and Status of Indigenous
Peoples: A Global Comparative and International Legal Analysis, 12 HARV. HUM. RTS. J.
57 (1999) (discussing both the conquest and dispossession of indigenous peoples’
lands and the mechanisms by which they have gained increased recognition and
participation in international law).
39 See, e.g., ANAYA, supra note 4; Anaya & Williams, supra note 38 (discussing
the contemporary indigenous peoples’ movement in which representatives for
indigenous peoples more frequently advocate for their rights before human rights
bodies); Wiessner, supra note 38, at 120–26 (discussing developments in
indigenous peoples’ claims to collective rights and avenues of enforcement).
40 ANAYA, supra note 4, at 56 (“The international system’s contemporary
treatment of indigenous peoples is the result of activity over the last few decades.
This activity has involved, and substantially been driven by, indigenous peoples
themselves.”).
41 See Coulter, International Human Rights Mechanisms, supra note 13, at 575–89
(discussing the “international bodies” through which Indian nations and tribes
may assert their rights).
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with opportunities for voicing their claims and seeking redress.42
While these two streams of literature implicitly support the
existence of an independent narrative of indigenous peoples’
participation in international lawmaking, they do not explicitly
develop the discrete substantive contours or implications of such
narrative.
A few analyses provide more explicit support for, and
development of, a discrete narrative of indigenous peoples’
participation in international lawmaking and its normative
implications. There is literature that addresses the possible
justifications for indigenous peoples’ participation in international
lawmaking.43 This literature bridges the gap between the broader
recognition of participatory rights in international lawmaking
processes and possible normative theories that could appropriately
justify indigenous peoples’ participatory role.44 Moreover, there is
some development in the literature regarding the possible
normative implications of indigenous peoples’ participation;
however, much of this literature focuses on the implications of
such participation with respect to the constitution of international
law rather than with respect to the continued advancement and
further operationalization of indigenous peoples’ claims.45
Ultimately, while this subset of literature recognizes, and
provides support for, the proposition that indigenous peoples have
played a role in human rights lawmaking, further development of
See id.
See Bluemel, supra note 13, at 72 (discussing shortcomings of the
mainstream literature that articulates justifications for indigenous peoples’
participation in international lawmaking).
44 See id. at 60 (focusing on indigenous peoples’ participation in human rights
lawmaking, Bluemel “seeks to understand group participation by looking at the
relationship between the various actors in the international system and the values
enhanced or undermined by such group participation”).
45 See Anaya, supra note 13, at 118–19 (focusing on the impact of indigenous
peoples’ participation in international lawmaking with respect to human rights
law). There is also a stream of related literature that does not specifically deal
with non-state actor participation in international lawmaking, but addresses the
use of the human rights discourse as a discourse of resistance by traditionally
marginalized communities, including indigenous peoples.
See generally
BALAKRISHNAN RAJAGOPAL, INTERNATIONAL LAW FROM BELOW: DEVELOPMENT,
SOCIAL MOVEMENTS, AND THIRD WORLD RESISTANCE (2003) (discussing the
emergence of transnational resistance by indigenous peoples); LAW AND
GLOBALIZATION FROM BELOW: TOWARDS A COSMOPOLITAN LEGALITY (Boaventura De
Sousa Santos & César A. Rodríguez-Garavito eds., 2005) (synthesizing case
studies of grassroots movements advocating for global social justice).
42
43
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this narrative, as well as the broader normative implications that
may flow from it, are merited. Unlike the existing narratives of
non-state actor participation in international lawmaking, the
narrative of indigenous peoples’ participation is one that
showcases the nuances of participation by a traditionally
marginalized community.
Procedurally, indigenous peoples’
participation highlights a multi-layered approach to international
lawmaking through both informal avenues of knowledge
production and norm-generation, and formal, top-down structures
engaged in decision-making. Substantively, indigenous peoples’
participation showcases the ability of a traditionally marginalized
community to succeed in strategically facilitating the recognition of
a distinctive international legal identity and substantive
reconstitution of human rights precepts. Furthermore, such a
narrative provides normative insights regarding the implications
of participation with respect to indigenous peoples’ realization of
their claims. Moreover, the narrative has the potential to provide
normative insights regarding possible dissonance between what
such participation does to, or for, international law, and what it
does to, or for, indigenous peoples. Ultimately, such analysis can
serve as a platform for identifying the possibilities and limits of
engaging international human rights lawmaking processes as
avenues of resistance or tools of social transformation for
traditionally marginalized communities.
3.
INDIGENOUS PEOPLES’ PARTICIPATION IN INTERNATIONAL
LAWMAKING
Indigenous peoples have participated in international
lawmaking as a means of reconstituting international and,
derivatively, national legal frameworks that significantly bypass
their historical subordination.
The project of reconstituting
international law, specifically human rights law, was pursued by
indigenous peoples as a means of organizing transnational
resistance to continuing affronts to their way of life. Human rights
offered a normative framework potentially capable of lending
legitimacy to indigenous peoples’ local, anti-subordination
struggles and of translating indigenous peoples’ claims into
recognizable rights. To that end, indigenous peoples engaged in
both informal mechanisms of knowledge production and normgeneration, and formal, top-down decision-making structures.
Through such participation, indigenous peoples have been
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successful in identifying and uploading core normative precepts
that distinguish indigenous peoples from other groups. The
emphasis on precepts of communal association and existence, as
well as cultural and religious ties to lands and resources, have
facilitated the recognition of a distinctive indigenous peoples
category and shaped the substantive scope of human rights
applicable to indigenous peoples.
3.1. Emergence as Participants in International Lawmaking
The “emergence” of indigenous peoples as participants in
international law did not become a part of international law
discourse until the latter part of the twentieth century. Indeed,
indigenous peoples’ status and rights have been historically
limited under international law. Only in the past forty years have
indigenous peoples, through a convergence of sociopolitical
factors, been able to incrementally play a significant participatory
role in international lawmaking processes.
During the colonial period, indigenous peoples were, for the
most part, ideologically constructed as irrational and uncivilized.46
Furthermore, during the post-colonial period of state formation,
the doctrine of sovereignty developed from a Eurocentric
perspective to privilege existing European or European-derived
territorial arrangements as states.47 Because indigenous peoples’
associational, social, and political structures did not resemble the
contours of the territorial state, indigenous peoples were not
considered sovereigns under international law.48 Moreover, even
the early post-World War II era of decolonization and human
rights bypassed indigenous peoples. The post-World War II
decolonization project, grounded in human rights precepts,
promoted the right of peoples to self-determination.49 However,
46 During the colonial period, debates between leading intellectuals focused
on the proper treatment of “newly discovered” peoples. See generally BARTOLOMÉ
DE LAS CASAS, HISTORY OF THE INDIES (Andrée Collard ed. and trans., 1971)
(chronicling early interactions between Europeans and indigenous peoples in the
West Indies); FRANCISCUS DE VICTORIA, DE INDIS ET DE IVRE BELLI RELECTIONES
(Ernest Nys ed., Carnegie Institution of Washington 1917) (1557) (collecting the
perspectives of the Spanish theologian, Franciscus de Victoria, on indigenous
peoples in the West Indies).
47 See ANAYA, supra note 4, at 19–31 (discussing the dominance of the early
Eurocentric modern state system).
48 See id. at 26–31 (discussing the positivist approach to international law
regarding treatment of indigenous peoples).
49 See id. at 53–54.
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self-determination applied only to an overseas colonial territory as
a whole, irrespective of pre-colonial enclaves of indigenous
peoples existing within the colonial territories and colonizing
states.50
Nevertheless, the convergence of four primary factors during
the past forty years has contributed to indigenous peoples’
participation in international norm-building and decision-making
processes: (1) shifts in ideological conceptions of indigeneity; (2)
local affronts to indigenous peoples’ way of life and greater
opportunities for transnational coalition-building, simultaneously
facilitated by circumstances of globalization; (3) attention under
international law to promoting ideals of participatory democracy;
and (4) advocacy by indigenous peoples aimed at greater
recognition of participatory rights.
First, indigenous peoples’ incremental participation in
international lawmaking would probably not have been possible
without significant shifts in ideological conceptions of indigeneity.
The idea of indigeneity was originally associated with savage
inferiority as a means of justifying colonization and the continued
subordination of communities of first peoples.51 Historically, the
idea of indigeneity remained tied to notions of cultural inferiority,
resulting in either the perpetual marginalization or mandated
assimilation of indigenous peoples.52 In the latter vein, policies of
50 See Declaration on the Granting of Independence to Colonial Countries and
Peoples, G.A. Res. 1514 (XV), para. 5, U.N. GAOR, 15th Sess., 947th plen. mtg.,
Supp. No. 16, U.N. Doc. A/4684 (Dec. 14, 1960).
Immediate steps shall be taken, in . . . territories which have not yet
attained independence, to transfer all powers to the people of those
territories . . . in accordance with their freely expressed will and
desire . . . in order to enable them to enjoy complete independence and
freedom.
Id.; see also G.A. Res. 1541 (XV), princ. IV, U.N. GAOR, 15th Sess., 948th plen. mtg.,
Supp. No. 16, U.N. Doc. A/4684 (Dec. 15, 1960) (hinging the application of selfdetermination to geographically separate territories).
51 See generally G. C. Marks, Indigenous Peoples in International Law: The
Significance of Francisco de Vitoria and Bartolome de las Casas, 13 AUSTL. Y.B. INT’L L.
1, 37–39, 49–53 (1990–1991) (articulating the debate regarding the relationship
between “newly discovered” first peoples and colonizing states).
52 The ideology of assimilation is reflected in international legal contexts as
well as national social and legal contexts. For example, the first comprehensive
treaty addressing the status and rights of indigenous peoples’ under international
law, ILO Convention 107, is premised on notions of integration. See Convention
(No. 107) Concerning the Protection and Integration of Indigenous and Other
Tribal and Semi-Tribal Populations in Independent Countries, June 26, 1957, ILO
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sociopolitical dependency on state structures and programs of
indigenous acculturation emerged as vehicles of expeditious
incorporation into dominant legal and social frameworks.53
Arguably, today, there has been a significant rejection of
assimilationist ideology in favor of a recognition of difference
based on indigenous peoples’ distinctive cultural, religious,
associational, and political orders. Assimilation ultimately became
associated with discriminatory practices leading to cultural
genocide—the shattering of communal ties through the imposition
of Eurocentric legal and social transplants.54 Also, assimilation as a
social policy simply proved ineffective; it ignited further resistance
from local communities of indigenous peoples that sought to
preserve an independent identity and way of life.
Ultimately, overarching normative and political shifts lead to a
more comprehensive and less discriminatory ideology of
indigenous peoples grounded in indigenous peoples’ own
No. 4738, pt. 1 art. 2, 2(c), 328 U.N.T.S. 247 (entered into force June 5, 1959)
(including measures for “creating possibilities of national integration to the
exclusion of measures tending towards the artificial assimilation of these
populations”). At the domestic level, social contexts determined the viability of
programs of assimilation. While in some states, efforts and programs aimed at
greater integration and assimilation were perceived as too great a grant of
increased status, other states fully engaged such approach. See Marie Corcoran,
Rhetoric Versus Reality: The Jurisdiction of Rape, the Indian Child Welfare Act, and the
Struggle for Tribal Self-Determination, 15 WM. & MARY J. WOMEN & L. 415, 428–30
(2009) (discussing Congress’s recognition of problems associated with the
assimilation of American Indians and the effect of this recognition on the passage
of the Indian Child Welfare Act); Carole E. Goldberg, Individual Rights and Tribal
Revitalization, 35 ARIZ. ST. L.J. 889, 923 (2003) (discussing the relationship between
Native nations and the U.S. government with respect to assimilation, integration,
and self-determination); Pamela O’Connor, Squaring the Circle: How Canada is
Dealing with the Legacy of its Indian Residential Schools Experiment, 28 INT’L J. LEGAL
INFO. 232, 239–40 (2000) (noting the Canadian government’s approach to
assimilation of Native children through education).
53 See ANAYA, supra note 4, at 31–34 (articulating the “trusteeship doctrine,”
which aimed to “civilize” indigenous peoples).
54 The rejection of assimilation as an overarching policy for the management
of indigenous peoples is evident in the revision processes undertaken by the ILO
with respect to ILO Convention 107. The product of that revisionary process, ILO
Convention 169, reflects a progression toward the recognition of indigenous
peoples as a distinct social group. See International Labour Organization,
Convention Concerning Indigenous and Tribal Peoples in Independent Countries,
28 I.L.M. 1382, 1384 (entered into force June 27, 1989) (“[I]t [is] appropriate to
adopt new international standards . . . removing the assimilationist orientation of
the earlier standards . . . .”).
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accounts of their lived experiences.55 This continuously evolving
ideology is primarily one of indigenous peoples’ survival as
distinct communities which are now constrained within domestic
and international legal and institutional systems that did not
foresee their endurance. In this vein, indigenous peoples have
extolled their religious, cultural, and political differences as
reasons for greater self-determination. They have sought to
harness this developing ideology to gain legal redress for their
historical subordination and contemporary claims at the
international scale. Ultimately, legal developments in human
rights law during the latter part of the twentieth century reflect a
recognition, accommodation, and progression of such ideology.
Second, circumstances of globalization have facilitated
indigenous peoples’ participatory role in international lawmaking.
While circumstances of globalization have led to increased affronts
on indigenous peoples’ way of life, they have also prompted and
enabled the transnational organization of local communities of
indigenous peoples. On the one hand, globalization has arguably
led to increasing assaults by states and non-state actors, such as
corporate entities, on indigenous peoples’ ability to determine their
own futures.56 For example, the deregulation of market forces has
55 See RODRÍGUEZ-PIÑERO, supra note 5, at 259–60 (situating a shift regarding
the status of indigenous peoples and the affirmation of indigenous rights during
the last quarter of the century within the confluence of several normative and
political changes, including (1) a paradigmatic shift from an “uncontested notion
of ‘development’ typical of the post-war era” toward a model of “‘participatory
development’” or “‘ethno-development,’” (2) a progression in the liberal model of
“‘universal citizenship’” based on notions of assimilation and integration toward
a model of “‘multicultural citizenship’” based on the acknowledgement of
cultural distinctions, and (3) a “generalized political and intellectual attack” on
existing anthropological conceptions of indigenism that promoted integrationist
governmental policies).
56 See Richard Falk, The Nuclear Weapons Advisory Opinion and the New
Jurisprudence of Global Civil Society, 7 TRANSNAT’L L. & CONTEMP. PROBS. 333, 335–36
(1997) (proposing the following distinction between globalization from above and
globalization from below: “the restructuring of the world economy on a regional
and global scale through the agency of the transnational corporation and financial
markets from above, and the rise of transnational social forces concerned with
environmental protection, human rights, and peace and human security from
below”); see also RONALD NIEZEN, THE ORIGINS OF INDIGENISM: HUMAN RIGHTS AND
THE POLITICS OF IDENTITY 9 (2003) (suggesting that indigenous identity has been
created, in part, as a result of the “shared experiences of marginalized groups
facing the negative impacts of resource extraction and economic modernization
and . . . the social convergence and homogenization that these ambitions tend to
bring about”); Lillian Aponte Miranda, The Hybrid State-Corporate Enterprise and
Violations of Indigenous Land Rights: Theorizing Corporate Responsibility and
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potentially made it easier for transnational corporate actors to
engage in large infrastructure and natural resource extraction
projects on indigenous peoples’ claimed lands.57 On the other
hand, circumstances of globalization have led to the rise in
participation of non-state actors in international lawmaking.58
Scholars have suggested that globalization, from above and from
below, has changed the role of states in global governance and,
concurrently, increased the opportunities for non-state actors and
transnational networks to participate in global governance.59
Two specific circumstances of globalization have primarily
facilitated indigenous peoples’ participation in global governance:
(1) the increasing interdependence at the global level where the
activities of people in one locality have repercussions elsewhere,
and (2) the increasing fragmentation of states into autonomous
groups.60 Increasing interdependence at the global level has
prompted local communities of indigenous peoples to organize
themselves transnationally. Since the activities of one indigenous
community could have repercussions on the activities of another
indigenous community elsewhere, coalition-building at the
international scale has presented an opportunity for greater gains.
An increasing fragmentation of states has also prompted local
communities of indigenous peoples to organize themselves
transnationally. If state entities are giving way to other types of
autonomous groupings, then coalition-building at the international
scale serves as an avenue of survival. It presents a greater
Accountability Under International Law, 11 LEWIS & CLARK L. REV. 135 (2007)
(canvassing the impacts of corporate entities on the promotion and protection of
indigenous peoples’ land rights).
57 See Miranda, supra note 56, at 154–60 (discussing the effects of “hybrid
state-corporate activity” on indigenous peoples’ lands).
58 See Mertus, Transnational Civil Society, supra note 11, at 1341 (proposing that
globalization has been a catalyst for the increase of non-state actor participation in
the international human rights system).
59 See id. at 1341–42 (articulating the notion of globalization from above and
below).
60 See id. at 1342–46 (emphasizing four dimensions of globalization that have
had an impact on the increase of non-state actor participation at the international
scale: (1) “an increasing interdependence at the world level, where the activities of
people in a specific area have repercussions that go beyond local, regional, or
national borders,” (2) “fragmentation of States and peoples into autonomous
groups and areas,” (3) “homogenization of the world wherein ‘instead of
differences among territorial units which were mutually exclusive, there is now a
uniformity,’” and (4) the undercutting of “homogeneity by producing
diversification within territorial communities”).
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opportunity for continued existence amidst a world of changing
borders, fluid groupings, and tenuous identities.
Third, interest in the achievement of democratic global
governance has facilitated the recognition of indigenous peoples’
participatory role in international lawmaking.61 Democratic global
governance has been linked to notions of “good” governance or
legitimacy in governance.62 It involves the “participation for the
peoples of the world, independent of governmental
representation.”63 In this context, the increasing participatory role
of indigenous peoples in international lawmaking can be
understood as a functional necessity of addressing pressing issues
of human dignity and providing greater legitimacy to a key
component of international governance: international lawmaking.
Fourth, as a means of advancing their claims, communities of
indigenous peoples have strategically pursued recourse at the
international scale. Through such engagement, communities have
specifically advocated for, and furthered the recognition of,
participatory rights in decision-making processes that have an
impact on their way of life.64 Such participatory rights function at
all levels of decision-making: local, national, and international.65
They specifically include the right to prior informed consultation
or consent with respect to state activities that impact their ancestral
61 See Falk, supra note 56, at 334 (discussing “the emergence of transnational
democratic tendencies as a feature of the international legal order”); Mertus,
Transnational Civil Society, supra note 11, at 1361 (proposing that “democratic
governance” continues to grow on a global scale). See generally Richard Falk, What
Comes After Westphalia: The Democratic Challenge, 13 WIDENER L. REV. 243 (2007)
[hereinafter Falk, What Comes After].
62 See Mertus, Transnational Civil Society, supra note 11, at 1352 (looking to the
World Bank’s definition of “good governance”).
63 Falk, What Comes After, supra note 61, at 251.
64 See James Anaya, Indigenous Peoples’ Participatory Rights in Relation to
Decisions About Natural Resource Extraction: The More Fundamental Issue of What
Rights Indigenous Peoples Have in Lands and Resources, 22 ARIZ. J. INT’L & COMP. L. 7,
16 (2005) (“[i]ndicat[ing] a general norm duty on states to consult with indigenous
peoples and accommodate their concerns whenever state action is contemplated
that would affect their interests”); Bluemel, supra note 13, at 77–78 (discussing
indigenous peoples’ right to participate in lawmaking processes).
65 See U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res.
61/295, arts. 5, 15, 17–19, U.N. GAOR, 61st Sess., 107th plen. mtg., U.N. Doc.
A/RES/61/295 (Sept. 13, 2007) [hereinafter UNDRIP] (articulating indigenous
peoples’ rights to self-determination and participation in political processes).
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lands and resources66 and the right to participate in governmental
policy-setting and decision-making.67
In sum, a convergence of these four factors has facilitated the
emergence of indigenous peoples as participants in international
lawmaking.
Indigenous peoples have contributed to, and
employed, a developing ideology that emphasizes cultural
difference as a reason for the recognition of a distinctive identity
commensurate with specifically designed rights. Circumstances of
globalization have offered local communities of indigenous
peoples both common experiences of continued subordination and
greater opportunities for transnationally sharing those experiences
and developing strategies of resistance that hinge on participation
in international lawmaking. An increased focus on the benefits of
greater direct participation by non-state actors in global
governance, has, in turn, enabled the recognition of indigenous
peoples’ participatory rights at such level. Indeed, academics,
activists, and policy-makers have begun to refer to the
“emergence” of indigenous peoples in international lawmaking
processes.
3.2. Translation of Claims into Human Rights
Indigenous peoples have engaged the human rights framework
to translate their claims into recognizable rights. Indigenous
peoples’ claims include increased protection over cultural
practices, greater control over ancestral lands and resources, and
ultimately, the meaningful exercise of self-determination. To
advance their claims, indigenous communities have identified and
emphasized attributes that distinguish them from other groups,
and consequently, have argued that generally applicable human
rights should be interpreted to account for such distinctive
attributes. Indigenous peoples’ efforts have resulted in the
66
See id. art. 32(2).
States shall consult and cooperate in good faith with . . . indigenous
peoples . . . in order to obtain their free and informed consent prior to the
approval of any project affecting their lands or territories and other
resources, particularly in connection with the development, utilization or
exploitation of mineral, water or other resources.
Id.
67 See id. arts. 5, 18–19 (declaring that indigenous peoples should be actively
included in decision-making processes, especially regarding decisions that affect
them directly).
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recognition of a distinctive indigenous identity capable of
triggering a specific set of human rights.68
As an initial matter, it is important to note that indigenous
peoples’ claims do not need to be cabined within the discourse of
human rights. For example, the claims of indigenous peoples may
be conceptualized as minority claims, self-determination claims by
a colonized peoples, historical sovereignty claims by first peoples,
and sui generis as indigenous peoples’ claims based on treaty or
other agreements with states.69 However, while indigenous
peoples’ claims may be grounded in more than one category, many
claims have been designed as primarily human rights claims and
channeled through the human rights system.70 The formulation of
indigenous peoples’ claims as human rights is not without
controversy. While a significant number of scholars, indigenous
peoples’ representatives, and state representatives have supported
the channeling of indigenous peoples’ claims through the human
rights discourse, others have argued that the discourse’s “equal
rights rhetoric” as well as its system of implementation and
enforcement itself are inherently unjust, flawed, or insufficient.71
Nevertheless, advocates of indigenous peoples’ rights at the
international scale may be relying on the human rights program
while acknowledging that it “might be made more useful by
reform,” and “leav[ing] for later consideration the question [of]
whether a reformed human rights program could ever
satisfactorily address all the issues, and in particular, whether a
68 See RODRÍGUEZ-PIÑERO, supra note 5, at 258 (“Contemporary discourse on
‘the rights of indigenous peoples’ or ‘indigenous rights’ refers to the
concretization of generally applicable human rights principles to the specific
circumstances of, and demands from [indigenous] peoples.”).
69 See Kingsbury, supra note 38, at 190 (identifying conceptual structures
pursuant to which indigenous peoples form claims). See generally S. James Anaya,
Divergent Discourses About International Law, Indigenous Peoples, and Rights over
Lands and Natural Resources: Toward a Realist Trend, 16 COLO. J. INT’L ENVTL. L. &
POL’Y 237, 240–42 (2005).
70 The discourse of human rights has not been the only means of
contemporary advocacy on behalf of indigenous peoples. See Anaya, supra note
69, at 239–42 (addressing the divergence and interplay of discourses regarding
historical sovereignty and human rights). Nevertheless, indigenous peoples have
found their greatest success by grounding their contemporary claims within the
discourse of human rights. Id. at 241.
71 See Kingsbury, supra note 38, at 193–94.
As suggested by Professor
Kingsbury, this line of argumentation is akin to “Derrick Bell’s critique of the civil
rights struggle as channeling energies of black Americans into areas of symbolic
success but with limited impact on underlying problems.” Id.
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distinct category of indigenous peoples’ rights ought to exist
alongside the human rights program and other international legal
structures.”72
Specifically, indigenous peoples have grounded their claims on
human rights articulated in declarations and treaties, such as the
right to self-determination,73 the right to not be discriminated
against,74 the right to cultural integrity,75 and the right to
property.76 These human rights have been interpreted to account
for indigenous peoples’ identification of political, associational,
religious, and cultural distinctiveness and contemporary
circumstances that present affronts by states to preservation of
their way of life and control over their ancestral lands and
resources.
For example, human rights precepts of selfdetermination and non-discrimination have been interpreted to
protect indigenous peoples’ claims of a distinctive indigenous
identity and way of life.77 Additionally, human rights precepts of
Kingsbury, supra note 38, at 194.
See International Covenant on Civil and Political Rights art. 1, para. 1, Dec.
19, 1966, 999 U.N.T.S. 171 (providing for the right to self-determination);
International Covenant on Economic, Social and Cultural Rights art. 1, para. 1,
Dec. 16, 1966, 993 U.N.T.S. 3 (“All peoples have the right of self determination.”).
74 Rep. of the Comm. on the Elimination of Racial Discrimination, U.N.
GAOR, 52nd Sess., Supp. No. 18, at 122-23, U.N. Doc. A/32/18 Annex V. (Aug.
18,
1997),
available
at
http://www.unhchr.ch/tbs/doc.nsf/0
/73984290dfea022b802565160056fe1c?Opendocument.
75 See International Covenant on Civil and Political Rights, supra note 73, art.
27, para. 3 (providing that members of minority populations “shall not be denied
the right . . . to enjoy their own culture”); see also ANAYA, supra note 4, at 134
(proposing that article 27 of the International Covenant on Civil and Political
Rights is representative of customary international law).
76 See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, art. 17,
U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948), available at
http://www.un.org/Overview/rights.html (providing, inter alia, that “[e]veryone
has the right to own property alone as well as in association with others,” and
“[n]o one shall be arbitrarily deprived of his property”); see also American
Declaration of the Rights and Duties of Man, O.A.S. Res. XXVIII,
OEA/Ser.L./V/II.23, doc. 21 rev. 6 (1948), available at http://www.oas.org
/juridico/English/ga-Res98/Eres1591.htm [hereinafter American Declaration];
European Convention for the Protection of Human Rights and Fundamental
Freedoms art. 1, Nov. 4, 1950, 213 U.N.T.S. 221 (providing that “every . . . person
is entitled to the peaceful enjoyment of his possessions”); Organization of
American States, American Convention on Human Rights art. 21, Nov. 22, 1969,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123, available at http://www.cidh.org
/Basicos/English/Basic1.%20Intro.htm [hereinafter American Convention]
(“Everyone has the right to the use and enjoyment of his property.”).
77 See S. James Anaya, Indigenous Rights Norms in Contemporary International
Law, 8 ARIZ. J. INT’L & COMP. L., no. 2, 1991 at 1, 32 (discussing the principle of self72
73
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self-determination, non-discrimination, cultural integrity, and
property have been interpreted to protect indigenous peoples’
claims to a distinctive communal, religious, and cultural
association with ancestral land. Indeed, indigenous peoples’
claims to ownership, occupancy, use, and control of their
traditional lands and resources are recognized as human rights.78
More broadly, the recently adopted United Nations Declaration on
the Rights of Indigenous Peoples, which draws upon the
development of human rights jurisprudence with respect to
indigenous peoples, reflects a more comprehensive translation of
indigenous peoples’ claims into recognizable rights.79
3.3. Participation in Human Rights Norm-Building and DecisionMaking Processes
Communities of indigenous peoples have primarily
participated in international lawmaking within the human rights
regime.
They have sought to translate their claims into
recognizable human rights through participation in informal and
formal norm-building and decision-making processes.80 Through
determination in relation to indigenous peoples); Siegfried Wiessner, Indigenous
Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous
Peoples, 41 VAND. J. TRANSNAT’L L. 1141, 1170-76 (2008) (suggesting a re-definition
of indigenous sovereignty based on the adoption of the United Nations
Declaration on the Rights of Indigenous Peoples). See generally MAIVÂN C. LÂM,
AT THE EDGE OF THE STATE: INDIGENOUS PEOPLES AND SELF-DETERMINATION 51–62,
123–35 (2000) (discussing the history and development of norms relevant to selfdetermination claims and the application through the U.N. of these norms to
indigenous peoples); Catherine J. Iorns, Indigenous Peoples and Self Determination:
Challenging State Sovereignty, 24 CASE W. RES. J. INT’L L. 199 (1992) (addressing
barriers regarding the recognition of indigenous peoples’ right to selfdetermination).
78 See Miranda, supra note 8, at 447–54.
79 See UNDRIP, supra note 65, at pmbl. The U.N. Declaration on the Rights of
Indigenous Peoples “is a further important step forward for the recognition,
promotion and protection of the rights and freedoms of indigenous peoples and
in the development of relevant activities of the United Nations system in this
field.” Id. The Declaration affirms “that indigenous individuals are entitled
without discrimination to all human rights recognized in international law, and
that indigenous peoples possess collective rights which are indispensable for their
existence, well-being and integral development as peoples.” Id.
80 Indigenous peoples’ participation in international lawmaking has been
dynamic and fluid, and therefore, cannot be appropriately presented in a
chronological timeline nor dissected into a narrative of events that necessarily
build upon each other in a particular order. Accordingly, this Article provides an
account of indigenous peoples’ participation by analyzing the primary informal
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participation in such processes, indigenous peoples have
contributed to the recognition of the legal category “indigenous
peoples” and to the creation of a well-established body of
international norms that specifically address indigenous peoples’
human rights.
First, sub-national, identity-based communities have engaged
in bottom-up resistance against affronts to their way of life through
participation in informal norm-building processes.
These
communities have formed, or engaged, transnational networks and
non-governmental organizations dedicated to the production of
knowledge and generation of norms regarding the recognition of a
distinctive transnational indigenous identity and a derivative
framework of indigenous rights. Second, these communities have
engaged in resistance against affronts to their way of life through
participation in more formal, institutionalized, top-down
structures that contribute to the development of norms and
decision-making regarding indigenous peoples’ rights. Ultimately,
indigenous peoples’ participation in these informal and formal
processes has contributed to the formulation of “hard” and “soft”
law applicable to indigenous peoples.81 Both hard law, which
traditionally encompasses binding treaty and customary
international law, and soft law, which includes declarations and
non-binding jurisprudence from human rights bodies, constitute
sources of rights for indigenous peoples today.
The activities of transnational networks and non-governmental
organizations have contributed to indigenous peoples’ ability to
participate, even if only informally or indirectly, in international
identity-building and rights formulation.82 Transnational networks
have been instrumental in creating such opportunities through the
organization of transnational conferences. Non-governmental
organizations have similarly been involved in identity-building
and rights-formulation through advocacy efforts.
In the 1970s, indigenous peoples from around the world began
to gather at transnational conferences aimed at addressing pressing
and formal processes through which norm-building and decision-making
regarding the scope of indigenous identity and rights has taken place.
81 See Shelton, supra note 10, at 319–23 (distinguishing between “hard” and
“soft” international law).
82 See NIEZEN, supra note 56, at 9 (finding that indigenous peoples have been
successful in forming transnational networks that pool resources and strategize
for purposes of identity-building and norm-generation).
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issues faced by indigenous peoples.
At such transnational
conferences, indigenous communities and their leaders shared
information regarding activities that affect their way of life, claims
against states, and effective human rights advocacy strategies.
Indigenous communities identified norms and values that could
propel the recognition of a distinctive transnational indigenous
identity and framework of rights responsive to their claims. They
debated the appropriate scope of such transnational indigenous
identity and the substance of such rights.
For example, in 1974, indigenous leaders from North America,
Greenland, Colombia, Scandinavia, Australia, and New Zealand
met at a conference in Guyana that prompted the World Council of
Indigenous Peoples, one of the first indigenous NGOs with official
U.N. consultative status.83 The meeting consisted of determining
details of the organization, such as the selection of delegates,
accreditation of observers, and, saliently, the adoption of a
definition of “indigenous peoples” for the purpose of determining
delegate status at the proposed international conference.84
Subsequent significant conferences included the International
Non-Governmental Organization Conference on Discrimination
Against Indigenous Peoples of the Americas,85 the Inuit
Circumpolar Conference,86 and the World Conference of
Indigenous
Peoples
on
Territory,
Environment,
and
83 See Douglas Sanders, The Formation of the World Council of Indigenous
Peoples, IWGIA Doc. No. 29 (1980), available at http://www.cwis.org
/fwdp/International/wcipinfo.txt (providing a comprehensive account of the
development of the World Council of Indigenous Peoples).
84 See generally Sanders, supra note 83.
85 See Comm. on Human Rights, Study of the Problem of Discrimination
Against Indigenous Populations, 34th Sess., U.N. Doc. E/CN.4/Sub.2/476/Add.5
(June 17, 1981) [hereinafter Declaration for Defense of Indigenous Nations]
(proposal resulting from the conference). See generally Rachel San Kronowitz et
al., Toward Consent and Cooperation: Reconsidering the Political Status of Indian
Nations, 22 HARV. C.R.-C.L. L. REV. 507, 613-14 (1987).
86 See
ICC’s
Beginning,
INUIT
CIRCUMPOLAR
COUNCIL,
http://inuitcircumpolar.com/section.php?ID=15&Lang=En&Nav=Section (last
visited Oct. 30, 2010) (describing the creation of the Inuit Circumpolar Council).
See also Sara C. Aminzadeh, Note, A Moral Imperative: The Human Rights
Implications of Climate Change, 30 HASTINGS INT’L & COMP. L. REV. 231, 232 n.7
(2007) (discussing the ICC petition to the Inter-American Commission on Human
Rights against the United States); Inuit Circumpolar Council (ICC), INUIT
CIRCUMPOLAR COUNCIL, http://inuitcircumpolar.com/index.php?auto_slide=&ID
=16&Lang=En&Parent_ID=&current_slide_num (last visited Oct. 30, 2010)
(describing the goals and activities of the ICC).
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Development.87 The International Nongovernmental Organization
Conference on Discrimination Against Indigenous Peoples of the
Americas occurred in Geneva in 1977.88
This conference
constituted the first major meeting in which representatives of
indigenous groups were provided “the opportunity to express
their views in an international forum.”89 The Conference served as
a platform for the recognition of indigenous peoples under
international law.90 It ultimately resulted in the adoption of a
“Draft Declaration of Principles for the Defense of Indigenous
Nations and Peoples of the Western Hemisphere,” which was
prepared by participating indigenous peoples.91
Furthermore, in June 1977, Eben Hopson, Mayor of the North
Slope Borough, Alaska and Inuit advocate, hosted the first Inuit
Circumpolar Conference (“ICC”), for the purpose of uniting Inuits
from various countries.92 At the conference, fifty-four delegates
from Canada, Greenland, and Alaska agreed to found an
organization to continue their collective work on an international
basis.93 The ICC has subsequently developed into a major
international organization representing 150,000 Inuits from Alaska,
Canada, Greenland, and Russia and holding Consultative Status II
at the United Nations.94
Moreover, The World Conference of Indigenous Peoples on
Territory, Environment and Development, commonly referred to
as the Kari-Oca meeting, was held in the outlying area of Rio de
Janiero, Brazil in June 1992.95 The Conference centered on the role
of indigenous peoples as part of the global community in the
twenty-first Century.96
Delegates discussed and solidified
87 See Ingrid Washinawatok, International Emergence: Twenty-One Years at the
United Nations, 3 N.Y. CITY L. REV. 41, 50 (1998) (describing the purpose and
proceedings of the World Conference of Indigenous Peoples on Territory,
Environment, and Development).
88 See Kronowitz et al., supra note 85, at 613–14 (describing the conference and
“Declaration on Principles for the Defense of the Indigenous Nations and Peoples
of the Western Hempisphere” that resulted from the conference).
89 Id.
90 Id.
91 Declaration for Defense of Indigenous Nations, supra note 85.
92 See ICC’s Beginning, supra note 86 (describing the formation of the Inuit
Circumpolar Council).
93 Id.
94 See generally Inuit Circumpolar Council (ICC), supra note 86.
95 Washinawatok, supra note 87, at 50.
96 Id.
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advocacy positions on a number of issues, including the use of
nuclear material on indigenous lands, the destruction of
indigenous ecosystems and natural resources, and the eradication
of the principle of terra nullius.97
Likewise, NGOs created to study, investigate, and promote
indigenous peoples’ claims have also contributed to indigenous
peoples’ ability to participate, whether informally or formally, in
international norm-building and decision-making processes. More
specifically, indigenous peoples have assisted non-governmental
organizations in the creation of reports regarding contemporary
conditions of subordination, marginalization, and discrimination
against indigenous communities in different parts of the world.
They have further assisted such organizations in identifying
indigenous norms and values that could serve as a platform for
advocacy strategies that capitalize on the politics of difference for
distinctive identity and rights recognition.
There are a number of NGOs dedicated to studying and
investigating indigenous peoples’ claims and violations of
indigenous peoples’ human rights, including among others, the
International Working Group for Indigenous Affairs (“IWGIA”)98
and El Consejo Indio de Sud America (“CISA”).99 Established in
1968, IWGIA’s mission is to endorse indigenous peoples’ rights to
self-determination, cultural integrity, and development based on
indigenous peoples’ own values.100 One of the main undertakings
of IWGIA is to ensure the promotion of indigenous issues and
indigenous peoples’ participation in international and regional
forums.101 CISA was founded in 1980 and possesses consultative
Id.
See generally IWGIA Mission Statement, INT’L WORK GROUP FOR INDIGENOUS
AFF., http://www.iwgia.org/sw17673.asp (last visited Oct. 30, 2010) [hereinafter
IWGIA Mission Statement] (announcing, in its mission statement, the International
Work Group for Indigenous Affairs’ commitment to indigenous peoples’ claims
for self determination).
99 See El Consejo Indio de Sud America, PUEBLO INDIO, http://www.puebloindio
.org/CISA/cisa.htm (last visited Oct. 30, 2010) [hereinafter CISA] (surveying
CISA’s work and commitment to ensuring the rights of indigenous peoples); see
also Raidza Torres, The Rights of Indigenous Populations: The Emerging International
Norm, 16 YALE J. INT’L L. 127, 165 (1991) (describing CISA as one of “[t]he most
vocal organizations” and briefly relating its operations “at the domestic, regional
and international level . . . to further indigenous causes”).
100 See IWGIA Mission Statement, supra note 98 (stating that the International
Work Group for Indigenous Affairs works to advance indigenous peoples’ claims
to self-determination).
101 Id.
97
98
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status with the U.N. Economic and Social Council.102 CISA’s
mission is to promote respect for indigenous peoples’ right to life,
justice, development, peace, and autonomy.103 To that end, CISA
coordinates activities that promote the exchange of knowledge,
experiences, and perspectives between indigenous peoples in order
to improve their welfare.104
In turn, NGOs have the ability to participate in more formal
norm-generation and decision-making forums. NGOs that possess
consultative status with the U.N. Economic and Social Council are
entitled to attend and contribute to a wide range of international
and inter-governmental conferences that often involve human
rights standard-setting.105 While local indigenous communities
may directly engage in more formal avenues of participation
offered by United Nations institutional forums, NGOs also have
the potential to engage such avenues. NGOs participate in the
activities of the United Nations Permanent Forum on Indigenous
Issues as well as specialized working groups aimed at standardsetting activities that impact indigenous peoples. NGOs also assist
indigenous peoples in filing petitions before human rights treaty
compliance bodies, including the Committee on Human Rights106
and the Committee on the Elimination of Racial Discrimination.107
Furthermore, NGOs have the ability to petition the Inter-American
Commission on Human Rights.108
See generally CISA, supra note 99.
Id.
104 Id.
105 See NGO Branch, U.N. DEP’T OF ECON. AND SOC. AFFAIRS (Oct. 30, 2010),
http://www.un.org/esa/coordination/ngo/ (explaining the process by which
NGOs can attain consultative status with the U.N. Economic and Social Council).
106 See Optional Protocol to the International Covenant on Civil and Political
Rights art. 2, Dec. 16, 1996, 999 U.N.T.S. 302 (“Subject to the provisions of article 1,
individuals who claim that any of their rights enumerated in the Covenant have
been violated and who have exhausted all available domestic remedies may
submit a written communication to the Committee for consideration.”).
107 See International Convention on the Elimination of All Forms of Racial
Discrimination art. 14, Dec. 21, 1965, G.A. Res 2106A, 660 U.N.T.S. 195 (entered
into force Jan. 4, 1969) (granting individuals and groups the right to make claims
against a state party to the Convention).
108 See American Convention, supra note 76, art. 44 (“Any person or group of
persons, or any nongovernmental entity legally recognized in one or more
member states of the Organization, may lodge petitions with the Commission
containing denunciations or complaints of violation of this Convention by a State
Party.”).
102
103
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In sum, through transnational conferences, leaders and
representatives of indigenous communities have debated and
solidified the creation of a transnational indigenous identity. They
have additionally shared on-the-ground perspectives, identified
core normative values shared by indigenous communities, and
strategized routes for further advocacy. Moreover, indigenous
peoples have contributed to NGOs’ production of knowledge
regarding the continued subordination and marginalization of
indigenous communities and the design of advocacy strategies.
Indigenous peoples, whether independently as local
communities or through engagement with NGOs, have
additionally participated in international lawmaking through
formal forums established by international organizations. Through
their participation in these forums, indigenous peoples have
contributed to the production of “hard” and “soft” international
law regarding indigenous peoples’ rights. While only hard law
bears the emblem of binding authority, soft law nonetheless shapes
an understanding of indigenous peoples’ international rights.
With respect to the production of “hard law,” indigenous
peoples participated, albeit in a limited manner, in the
International Labour Organization’s (“ILO”) design of ILO
Convention 169 Concerning Indigenous and Tribal Peoples in
Independent Countries. Although the ILO is not an international
body strictly within the human rights regime, the ILO’s work has
impacted the recognition and development of indigenous peoples’
human rights. In the context of “soft-law,” indigenous peoples
have contributed to the standard-setting work of the United
Nations Permanent Forum on Indigenous Issues, United Nations
working groups dedicated to addressing indigenous peoples’
issues and rights, human rights treaty compliance bodies, and
regional human rights commissions and courts.
As an initial matter, indigenous peoples played a limited
participatory role in the constitution of ILO Convention 169
Concerning Indigenous and Tribal Peoples in Independent
Countries, which revised ILO Convention 107 Concerning the
Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries.109 While the
lack of avenues for indigenous peoples’ meaningful participation
109 See RODRÍGUEZ-PIÑERO, supra note 5, at 291–331 (giving a thorough account
of the processes leading to the revision of ILO Convention 107 and resulting in the
creation of ILO Convention 169).
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garnered much criticism, indigenous peoples’ limited participation
nevertheless constituted an unprecedented entry into the sphere of
hard law-making. Additionally, although the crafting of ILO
Convention 169 was plagued with controversy110 and was initially
perceived by a number of indigenous peoples and NGOs as a
limiting document that failed to strongly reject racist policies
toward indigenous peoples and to promote modern notions of selfdetermination, it remains a source of binding obligations on states
regarding their treatment of indigenous peoples. Despite the
controversy surrounding its creation, 111 ILO Convention 169 has
come to be regarded as a document reflecting the progression from
the assimilationist and integrationist policies represented in ILO
Convention 107.
Even though at the time such revision process was undertaken
there was already a robust, transnational indigenous peoples
movement and the United Nations Working Group on Indigenous
Populations
had been established, indigenous peoples’
participation in the crafting of ILO Convention 169 was
constrained. Significantly, the structure of the ILO’s decisionmaking process did not account for the involvement of non-state
actors other than employers and workers.112 Moreover, because
the revision process was largely driven by the ILO’s desire to
remain in an international leadership role regarding indigenous
peoples’ affairs,113 “there was never a perception that serious
consensus-building with the international indigenous movement
concerning the need (or scope) of the revision was required.”114
110 See id. at 291 (“Issues concerning the ILO’s legitimacy in retaking the lead
in international action on indigenous peoples and the participation of indigenous
peoples themselves in this process, constitute[d] the convention’s ‘original sin,’
which explains many of the complex reactions that the instrument still
engenders.”).
111 See Robin M. Maher & David Weissbrodt, The 41st Session of the U.N. SubCommission on Prevention of Discrimination and Protection of Minorities, 12 HUM. RTS.
Q. 290, 323 (1990) (describing indigenous peoples’ controversial exit from a
meeting of the U.N. Working Group on Indigenous Populations in response to the
introduction of ILO Convention 169 by the ILO representative).
112 See RODRÍGUEZ-PIÑERO, supra note 5, at 312 (emphasizing that the
institutional culture of the ILO limited the participation of non-governmental
actors to its constituents). Interestingly, the ILO is the only international
organization that possesses a tripartite governance structure consisting of states
and non-state actors, namely, employers and workers. Id.
113 See id. at 293 (discussing the ILO’s strategy to preserve its sphere of
influence as an international leader).
114 Id. at 313.
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Nevertheless, during the drafting of ILO Convention 169 from
1986–1989, some indigenous peoples’ organizations were
permitted to participate indirectly through the attainment of
“observer status,” and indigenous peoples also participated
directly in discussions either as representatives of employers’ or
workers’ organizations.115
More specifically, the first forum of discussion for revisions to
ILO Convention 107 occurred in a 1986 Meeting of Experts.116
While this meeting produced a consensus that the overarching
integrationist policy of ILO Convention 107 should be rejected, it
failed to produce an alternate overarching policy for guiding the
revision process culminating in ILO Convention 169.117
A
representative from the World Council of Indigenous Peoples and
a representative from Survival International, international NGOs
advocating on behalf of indigenous peoples, were invited to
participate in the meeting as observers.118 Those representatives
proposed that self-determination should serve as an umbrella
principle for the elaboration of particularized rights in ILO
Convention 169.119 While the experts present at the meeting agreed
with the indigenous peoples’ representatives, the ILO Secretariat
ultimately considered a discussion of self-determination outside
the scope of the “technical” revision process.120 This meeting
engendered controversy regarding the limited channels of
participation, and impact of, indigenous peoples in the
development of ILO Convention 169. It ultimately concluded with
a request that the ILO “‘take all possible measures to ensure the
participation of indigenous and tribal representatives in the
process leading to the revision of . . . Convention [No 107].’”121
Thereafter, efforts included attendance by the ILO official
responsible for the revision process at the U.N. Working Group on
Id. at 314–16.
Id. at 295.
117 See id. at 296–97. Rather, the ILO revision processes drew mainly from the
discourse of development “with its emphasis on ‘participatory development’ or
‘ethnodevelopment.’” Id. at 299.
118 Id. at 313 n.118.
119 Id. at 296.
120 Id. at 293. Rodriguez-Piñero proposes that “[i]n this way, the eventual UN
Declaration on indigenous rights should articulate the ‘highest ideals and
maximum aspirations of indigenous peoples,’ while the ILO had a ‘more technical
but no less important task.’” Id.
121 Id. at 314.
115
116
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Indigenous Populations’ annual sessions and the granting of
“observer status” to several NGOs representative of indigenous
peoples’ interests.122 While the ILO official encouraged indigenous
peoples to support the revision process during the U.N. Working
Group’s annual sessions, there was not a meaningful consultation
process with indigenous peoples regarding the substantive scope
of the revisions.123 The most significant form of participation by
indigenous peoples occurred indirectly through the involvement of
several NGOs that were granted “observer status” at various ILO
meetings and conferences.124 Even this form of participation,
however, “provide[d] a ‘limited opportunity . . . to consult directly
the representatives [of] the groups concerned.’”125 The ILO Office
did circulate written comments from indigenous peoples’
organizations during Conference sessions and indigenous peoples’
concerns and demands were reflected in various comments
submitted by governments or workers in response to the Office’s
Nevertheless, while indigenous
preparatory questionnaire.126
peoples’ participation in the revision of ILO Convention 107
occurred within the existing structural and procedural constraints
of the ILO framework, “the level of participation allowed in the
drafting
of
a
legally-binding
convention
has
been
unmatched . . . .”127
Ultimately, scholars have proposed that core normative
precepts expressed in ILO Convention 169 reflect a crystallization
of customary international law regarding indigenous peoples’
rights,128 and the Convention has been referenced in this context
by the Inter-American Court of Human Rights.129 Indeed, despite
its controversial origins, ILO Convention 169 became a catalyst for
122
123
124
125
126
127
128
54.
Id. at 313.
Id.
Id. at 314.
Id. at 315.
Id. at 316.
Id. at 319.
See Anaya, supra note 77, at 9–10; Anaya & Williams, supra note 38, at 53–
129 See Mayagna (Sumo) Awas Tingni Cmty v. Nicaragua, Judgment, InterAm. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001) [hereinafter Awas Tingni Case]
(referencing the precepts found in ILO Convention 169 as significant to
interpreting the scope and meaning of the term “property” in the American
Convention).
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legislative and constitutional reforms in ratifying states130 as well
as for further developments regarding a body of customary
international law specific to indigenous peoples.
Second, indigenous peoples have also contributed to the
production of “soft” international law through advocacy before
formal, institutional bodies charged with norm-generation and
decision-making.
Specifically, they have channeled their
contributions through advocacy before United Nations
institutional bodies, human rights treaty compliance bodies, and
human rights commissions and courts. Advocacy before these
bodies has enabled indigenous peoples to draw upon and upload
the knowledge produced by transnational networks and NGOs
regarding indigenous peoples’ subordination, marginalization, and
discrimination as well as the core normative precepts and values
arguably representative of indigenous distinctiveness.
For example, indigenous peoples have participated in United
Nations institutional forums such as the United Nations
Permanent Forum on Indigenous Issues and the United Nations
Working Group on Indigenous Populations. In 2000, the United
Nations Permanent Forum on Indigenous Issues was established to
give indigenous peoples a greater voice within the U.N. system.131
The Permanent Forum is composed of sixteen members with
expertise on indigenous issues, eight of which are nominated by
governments and elected by the United Nations Economic and
Social Council (“ECOSOC”), and eight of which are appointed by
ECOSOC on the basis of consultation with indigenous peoples’
organizations.132 The eight members appointed by ECOSOC on the
130 See RODRÍGUEZ-PIÑERO, supra note 5, at 325–28 (discussing the importance
of ILO Convention 169 in the development of both domestic and international
laws and practices that recognize the rights of indigenous peoples).
131 See S. James Anaya, International Human Rights and Indigenous Peoples: The
Move Toward the Multicultural State, 21 ARIZ. J. INT’L & COMP. L. 13, 53–54 (2004)
(“The U.N. Permanent Forum on Indigenous Issues, which was established to
give indigenous peoples a greater voice within the U.N. system, and which is
constituted in part by indigenous persons, is now perhaps the principle
manifestation of general acceptance of indigenous participation within relevant
international spheres.”); About Us/Mandate, U.N. PERMANENT FORUM ON
INDIGENOUS ISSUES, http://www.un.org/esa/socdev/unpfii/en/about_us.html
(last visited Oct. 30, 2010) (describing the purpose and role of the Permanent
Forum and the group’s mandate).
132 Establishment of a Permanent Forum on Indigenous Issues, E.S.C. Res.
2000/22, U.N. Doc. E/RES/2000/22 (July 28, 2000), available at http://www.undocuments.net/e2000r22.htm. More specifically, in determining which eight
members should be appointed by ECOSOC on the basis of consultation with
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basis of consultation with indigenous peoples’ organizations
represent the following seven socio-cultural regions: Africa; Asia;
Central and South America and the Caribbean; the Arctic; Central
and Eastern Europe, the Russian Federation, Central Asia and
Transcaucasia; North America; and the Pacific—with one
additional rotating seat among the three first listed above.133
Accordingly, indigenous peoples are broadly represented and
possess permanent and official participation capabilities.
More specifically, the Permanent Forum on Indigenous Issues
is involved in the following activities: (1) discussing indigenous
issues within the mandate of ECOSOC relating to economic and
social development, culture, environment, education, health and
human rights; (2) giving advice to ECOSOC on economic and
social issues as they relate to indigenous peoples; (3) coordinating,
as part of the United Nations Department of Economic and Social
Affairs, the implementation of the Second Decade of the World’s
Indigenous Peoples; (4) organizing expert meetings as approved by
ECOSOC; and (5) submitting annual reports to ECOSOC including
recommendations and matters for consideration by the United
Nations system.134
In an effort to discuss indigenous issues, the Permanent Forum
holds an annual conference each year during which input on
thematic topics related to indigenous peoples’ concerns and rights
is received from indigenous participants.135
Through such
gatherings, indigenous peoples and their representative bodies
have had opportunities to share their local experiences and to
advocate for redress. These annual conferences culminate in a
report that is presented to ECOSOC. Therefore, through its
activities, the Permanent Forum raises awareness of indigenous
indigenous peoples’ organizations, ECOSOC takes into account “the diversity and
geographical distribution of the indigenous people of the world as well as the
principles of transparency, representativity and equal opportunity for all
indigenous people, including internal processes, when appropriate, and local
indigenous consultation processes . . . .” Id. para. 1.
133 Structure within ECOSOC, U.N. PERMANENT FORUM ON INDIGENOUS ISSUES,
http://www.un.org/esa/socdev/unpfii/en/structure.html (last visited Oct. 30,
2010).
134 Matrix on United Nations Mechanisms and Bodies on Indigenous Peoples, U.N.
ECON. & SOC. COUNCIL, HUMAN RIGHTS COUNCIL, Dec. 6–7, 2007, U.N. Doc.
IMWGIP/2007/CRP.1 (2007), available at http://www2.ohchr.org/english/issues
/indigenous/docs/informal/crp-1-e.doc. [hereinafter U.N. Matrix].
135 See Coulter, International Human Rights Mechanisms, supra note 13, at 578–
79.
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issues and offers avenues for norm-generation regarding
transnational indigenous identity and indigenous rights.136
The Working Group on Indigenous Populations, which was
established in 1982 as a subsidiary body of ECOSOC and abolished
in 2007, performed the mandate of dealing exclusively with
problems concerning observance of indigenous peoples’ rights
around the world.137 During its existence, the Working Group on
Indigenous Populations:
[P]repared thematic studies on indigenous peoples’ human
rights . . . discussed contemporary human rights issues
relating to indigenous peoples . . . presented annual report
to [the former Sub-Commission on Human Rights]
summarizing discussions and making recommendations . . .
[and] elaborated standards and guidelines in particular the
draft of the United Nations Declaration on the Rights of
Indigenous Peoples[.]138
Id.
See Working Group on Indigenous Populations, OFFICE OF THE U.N. HIGH
COMM’R FOR HUMAN RIGHTS, http://www2.ohchr.org/english/issues/indigenous
/groups/groups-01.htm (last visited Oct. 30, 2010) (outlining the resolutions and
actions of the Working Group). More specifically, the Working Group on
Indigenous Populations was charged with “reviewing developments pertaining to
the promotion and protection of human rights and fundamental freedoms of
indigenous populations” and giving “special attention to the evolution of
standards concerning the rights of indigenous populations [while] taking into
account . . . both the similarities and the differences in the situations and
aspirations of indigenous populations throughout the world.” U.N. Matrix, supra
note 134. The Working Group on Indigenous Populations “became directionless”
after the establishment of the Permanent Forum on Indigenous Issues in 2002 and,
therefore, was abolished in 2007. Informal Meeting to Discuss the Most Appropriate
Mechanisms to Continue the Work of the Working Group on Indigenous Populations,
U.N. ECON. & SOC. COUNCIL, HUMAN RIGHTS COUNCIL, Dec. 6–7, 2007, U.N. Doc.
No. IMWGIP/2007/CRP.9 (2007), available at http://www2.ohchr.org/english
/issues/indigenous/docs /informal/crp.9.doc.
138 U.N. Matrix, supra note 134. For an overview of the procedures enabling
the participation of indigenous peoples’ organizations in the Working Group’s
elaboration of the Declaration on the Rights of Indigenous Peoples, see
Programme of Activities for the International Decade of the World’s Indigenous
People, G.A. Res. 50/157, Annex pt. B, U.N. Doc. A/RES/50/157 (Feb. 29, 1996),
available
at
http://www.un.org/documents/ga/res/50/ares50-157.htm.
Ultimately, through their participation in the Working Group, more than 100
indigenous organizations participated in the Declaration’s drafting process. See
generally About UNPFII, U.N. PERMANENT FORUM ON INDIGENOUS ISSUES,
http://www.un.org/esa/socdev/unpfii/en/history.html (last visited Oct. 30,
2010).
136
137
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Although the participation of indigenous peoples was restricted to
an informal consultative status and limited to representatives of
indigenous NGOs, the Working Group actively solicited the
participation of indigenous peoples’ representatives in their
information-seeking, policy-shaping, and standard-setting work.139
The annual sessions of the Working Group functioned as an open
forum that enabled indigenous peoples to present their grievances
against national governments and to participate, even if only
indirectly, in the Working Group’s development of standards
specific to indigenous peoples.140 Prior to being abolished, the
Working Group prompted the General Assembly to adopt a
resolution in January of 2005 for the commencement of the
“Second International Decade of the World’s Indigenous
Peoples.”141 This resolution specifically encourages indigenous
peoples’ further participation in designing the substantive content
139 Official membership in the Working Group was limited to five human
rights experts that were members of the former Sub-Commission on Human
Rights. See Lâm, supra note 13, at 620 (“Culturally, socially, and professionally,
Working Group members generally [had] far more in common with
representatives of states and NGOs than they [did] with indigenous
spokespersons. For example, not a single indigenous lawyer, [despite the fact
that] there [were] many the U.N. could have chosen, s[a]t on the Working
Group.”). However, governments, United Nations bodies, non-governmental
organizations, and representatives of indigenous peoples, communities, and
organizations were granted observer status. U.N. Matrix, supra note 134.
Indigenous peoples’ participation in the Working Group was most evident
through the drafting process of the Declaration on the Rights of Indigenous
Peoples. Erica-Irene A. Daes, Chairperson/Rapporteur of the Working Group,
described how the legislative history of the Draft Declaration demonstrated the
“important and substantive contributions . . . made by indigenous people
themselves . . . . The drafts of principles . . . were circulated to indigenous peoples
and governments for written comments and suggestions each year from 1989 to
1992.” Erica-Irene A. Daes, Equality of Indigenous Peoples Under the Auspices of the
United Nations-Draft Declaration on the Rights of Indigenous Peoples, 7 ST. THOMAS L.
REV. 493, 494–99 (1995).
140 As a means of fostering the participation of indigenous peoples at such
annual sessions, the Working Group established a fund to subsidize the costs of
attendance by indigenous peoples’ representatives. See U.N. Secretary-General,
United Nations Voluntary Fund for Indigenous Populations, Rep. of the Econ. and Soc.
Council, U.N. Doc. A/43/706, para. 2 (Oct. 14, 1988) (depicting the makeup of the
Voluntary Fund for Indigenous Populations, as well as its board, method for
raising funds, and the funds received).
141 See generally U.N. Secretary-General, Draft Programme of Action for the
Second International Decade of the World’s Indigenous Peoples: Rep. of the SecretaryGeneral, U.N. Doc. A/60/270 (Aug. 18, 2005).
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of international law and in decision-making processes that directly,
or indirectly, impact their way of life.142
The most recent standard-setting document, the United
Nations Declaration on the Rights of Indigenous Peoples,
represents over twenty years of work that began in the United
Nations Working Group on Indigenous Populations in 1985 and
was subsequently concluded by the Working Group on the U.N.
Declaration on the Rights of Indigenous Peoples.143 Notably,
during the drafting process, draft principles and working papers
were circulated to indigenous peoples and governments for
142
Specifically, the Secretary-General’s draft programme of action provides:
The five objectives suggested for the Decade are as follows: (i) Promoting
non-discrimination and inclusion of indigenous peoples in the design,
implementation and evaluation of international, regional and national
processes regarding laws, policies, resources, programmes and projects;
(ii) Promoting full and effective participation of indigenous peoples in
decisions which directly or indirectly affect their lifestyles, traditional
lands and territories, their cultural integrity as indigenous peoples with
collective rights or any other aspect of their lives, considering the
principle of free, prior and informed consent.
Id. para. 9 (emphasis added).
It is recommended that cooperation be developed with the Working
Group on the Rights of Indigenous Populations/Communities in Africa
of the African Commission on Human and Peoples’ Rights with a view
to increasing the participation of indigenous peoples from Africa in the
implementation of the Second Decade Programme of Action and to
enhancing the understanding of indigenous issues in Africa.
Id. para. 48.
It is recommended that Governments should support and broaden the
mandate of existing national machineries for the promotion of equal
rights and prevention of discrimination, so that they will include
promotion of the rights of indigenous peoples. Legal centres could be
established by national authorities to inform and assist indigenous
people regarding national and international legislation on human rights
and fundamental freedoms, to carry out activities for protecting those
rights and freedoms and to promote the capacity-building and
participation of indigenous peoples.
Id. para. 55.
It is recommended that programmes and projects planned on traditional
indigenous territories or otherwise affecting the situation of indigenous
peoples should foresee and respect the full and meaningful participation
of indigenous peoples.
Id. para. 62.
143 See generally UNDRIP, supra note 65.
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written comments and suggestions.144 These working groups
actively solicited the participation of indigenous peoples in the
drafting of the U.N. Declaration on the Rights of Indigenous
Peoples. The former chairperson of the Working Group on
Indigenous Populations hailed the “substantive contributions
made by indigenous peoples” because, through every step of its
development, indigenous peoples were deeply involved in
discussions and negotiations with states.145 The Declaration serves
a bill of rights for indigenous peoples and covers rights related to
the preservation of cultural identity,146 the protection of traditional
lands and resources,147 and the right to pursue development in
keeping with a community’s own needs and aspirations.148
Furthermore, indigenous peoples have shared their normative
perspectives with human rights treaty compliance bodies such as
the Committee on the Elimination of Racial Discrimination and the
Human Rights Committee. For example, indigenous organizations
have been given the opportunity to submit written reports and to
present short formal briefings to the Human Rights Committee as a
means of assisting the Committee in its review of state
compliance.149 Indigenous peoples have also engaged complaint
procedures when available, and through such advocacy, have
contributed to the Committee’s nuanced interpretation of rights in
the context of indigenous claims.150
Moreover, indigenous peoples have shared their normative
perspectives with the Inter-American Commission and Court.
They have sought recourse before these bodies, and through their
advocacy, have contributed to the development of jurisprudence
that specifically addresses indigenous claims.151
Daes, supra note 139, at 494–99.
Id.
146 E.g., UNDRIP, supra note 65, arts. 8, 9, 11–16, 31, 33–35.
147 E.g., id. arts. 8(2)(b), 10, 25, 26, 27, 28, 29(1)–(2), 30, 32.
148 E.g., id. arts. 3, 4, 18, 19, 20, 23, 32.
149 Coulter, International Human Rights Mechanisms, supra note 13, at 581.
150 See, e.g., Länsmann v. Finland, Views, Human Rights Comm., 52d Sess.,
No. 511/1992, U.N. Doc. CCPR/C/52/D/511/1992 (1994); Ominayak, Chief of
the Lubicon Lake Band v. Canada, Views, Human Rights Comm., 38th Sess., No.
267/1984, U.N. GOAR, 45th Sess., Supp. No. 40, (Vol. 2), U.N. Doc. A/45/40,
Annex IX (1990); Lovelace v. Canada, Views, Human Rights Comm., No. 24/1977,
U.N. GOAR, 36th Sess., Supp. No. 40, U.N. Doc. A/36/40, Annex XVIII, at 166
(1981).
151 See, e.g., Aboriginal Cmty. of Lhaka Honhat v. Argentina, Petition 12.094,
Inter-Am. Comm’n H.R., Report No. 78/06, OEA/Ser.L./V/II.127, doc. 4 rev. 1
144
145
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3.4. Contributions to the Design of a Transnational Indigenous
Identity and the Substantive Contours of Indigenous Rights
Through participation in such informal and formal normbuilding and decision-making processes, indigenous peoples have
contributed to the substantive design of the legal category
“indigenous peoples” and to the creation of a well-established
body of international human rights specific to indigenous peoples.
These processes have offered indigenous peoples opportunities to
share on-the-ground experiences and to articulate norms and
values that highlight distinctive attributes of their communities—
such as norms of communal association and existence, as well as
norms of cultural and religious ties to ancestral lands and
resources. Indigenous peoples have been able to engage in an
uploading of such norms as a means of triggering, and reformulating, the application of human rights.
First, indigenous peoples’ substantive contributions are evident
with respect to the legal category termed “indigenous peoples.”
Indigenous peoples needed to create a transnational legal identity
in order to trigger the recognition or application of particularized
rights.
Of course, just like any legal category capable of
redistributing political or economic capital, the substantive scope
of such category was not produced without controversy.152
(2007), available at http://www.cidh.org/annualrep/2006eng/ARGENTINA
.12094eng.htm; Cmtys. in Alcantara v. Brazil, Petition 555-01, Inter-Am. Comm’n
H.R. Report No. 83/06, OEA/Ser.L./V/II.127, doc. 4 rev. 1 (2007), available at
http://www.cidh.org/annualrep/2006eng/BRAZIL.555.01eng.htm; Dann v.
United States, Case 11.140, Inter-Am. Comm’n H.R. Report No. 75/02,
OEA/Ser.L./V/II.117, doc. 1 rev. 1 (2002), available at http://www.cidh.org
/annualrep/2002eng/USA.11140.htm; Enxet-Lâmenxay & Kayleyphapopyet
(Riachito) Indigenous Cmtys. v. Paraguay, Case 11.713, Inter-Am. Comm’n H.R.,
Report No. 90/99, OEA/Ser.L./V/II.106, doc. 6 (1999), available at http://www
.cidh.org/annualrep/99eng/Friendly/Paraguay11.713.htm; Garifuna Cmty. of
Cayos Cochinos v. Honduras, Petition 1118-03, Inter-Am. Comm’n H.R., Report
No. 39/07, OEA/Ser.L./V/II.130, doc. 22 rev. 1 (2007), available at
http://www.cidh.org/annualrep/2007eng/Honduras1118.03eng.htm; The Kalina
& Lokono Peoples v. Suriname, Petition 198-07, Inter-Am. Comm’n H.R., Report
No. 39/07, OEA/Ser.L./V/II.130, doc. 22 rev. 1 (2007), available at
http://www.cidh.org/annualrep/2007eng/Suriname198.07eng.htm; Yanomami
v. Brazil, Case 7615, Inter-Am. Comm’n H.R., Report No. 12/85,
OEA/Ser.L./V/II.66, doc. 10 rev. 1 (1985), available at http://www.cidh.org
/annualrep/84.85eng/Brazil7615.htm.
152 See generally Benedict Kingsbury, “Indigenous Peoples” in International Law:
A Constructivist Approach to the Asian Controversy, 92 AM. J. INT’L L. 414 (1998)
(discussing definitions of “indigenous peoples” found in texts by the U.N., ILO,
and the World Bank and analyzing whether the legal category of “indigenous
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Pressing questions arose: Who exactly could be considered
“indigenous?” Who exactly could be considered a distinct
“people?” Could a collective identity be the source of collective
rights? The construction of a transnational indigenous peoples’
identity ultimately reflects a recognition of inherent difference
from dominant religious, cultural, political, and associational
structures.153 Indeed, claims by indigenous peoples that are tied to
peoples” should apply in the context of Asia); Will Kymlicka, The
Internationalization of Minority Rights, 6 INT’L J. CONST. L. 1 (2008) (describing the
U.N.’s distinction between minorities and indigenous peoples and noting that the
U.N. views the “crucial feature of indigenous peoples, which distinguishes them
from minorities in general, [as] their strong attachment to a traditional territory
that they view as their historic homeland”); Jeremy Waldron, Indigeneity? First
Peoples and Last Occupancy, 1 N.Z. J. PUB. & INT’L L. 55 (2003) (describing varying
definitions of “indigeneity,” including: first occupancy, which defines
“indigenous peoples” as “the descendants of the first human inhabitants of a
land,” and prior occupancy, which defines “indigenous peoples” as the
“descendants of those who inhabited the land at the time of European
colonization”). The scope and impact of an “indigenous peoples” category under
international law continues to be debated. See John R. Crook, Contemporary
Practice of the United States Relating to International Law, 101 AM. J. INT’L L. 185, 211–
13 (2007) (describing the objections of the United States, Australia, and New
Zealand to the U.N. Declaration on the Rights of Indigenous Peoples, particularly
the absence of a “scope of application” or definition of “indigenous peoples,”
since “separatist or minority groups, with traditional connections to the territory
where they live—in all regions of the globe—could seek to exploit this declaration
to claim the right to self-determination, including exclusive control of their
territorial resources”).
153 See RODRÍGUEZ-PIÑERO, supra note 5, at 340. Luis Rodríguez-Piñero has
instructively observed the following regarding the development of an
“indigenous peoples” category under international law:
[T]he ‘anthropological’ definition of indigenousness articulated in the
1957 ILO instruments has, ironically, the virtue of putting the emphasis
on the cultural distinctiveness of indigenous societies and the
maintenance of their social, legal, and political institutions as the
fundamental defining criterion, and depicting history as a relevant factor
in explaining indigenous peoples’ distinctiveness vis-à-vis the dominant
societies now encapsulating them—but not as the ultimate source of
indigenous rights . . . .
Indigenous peoples thus emerged in modern international law as a result
of their subjectivization by social sciences. But this subjectivization
provided the conditions for the possible re-appropriation of this category
as a vehicle of resistance for the subjects it constructed. In this respect,
the emergence of the modern regime on indigenous rights was the result
of the increasing mobilization of the international indigenous movement
constituting a privileged example of what Foucault conceptualized as the
‘tactical polyvalence of discourses’: namely, the turning of a disciplining
discourse into a liberating discourse by the same social groups subject to
and constructed by that disciplining.
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religious, cultural, political, and associational differences have
become more commonplace than claims of geographical
difference.154
Indigenous peoples have contributed to this legal category in
three primary ways: (1) determining the substantive scope of the
term “indigenous”; (2) determining the substantive scope of the
term “peoples”; and (3) perpetuating an open-ended meaning
rather than a specifically tailored definition. The suggestion here is
that there has been a significant appropriation of meaning by
indigenous peoples themselves. Certainly, the particularities of
such appropriation by indigenous peoples are not devoid of debate
or lack of consensus.
This referential category became a salient part of international
discourse during the 1980s.155 Through their participation in normgenerating and decision-making processes, indigenous peoples
appropriated the term “indigenous” as a means of distinguishing
their claims from those of groups that could be classified under
international law as “minorities.”156 The acknowledgement and
endurance of the term “indigenous” reflects an incorporation of
indigenous communities’ core normative precepts. It strategically
marks differences between groups that could be considered
“indigenous” and other groups that may bear similar indicia of
colonization, subordination, and marginalization.157 The difference
marker is an asserted distinctiveness in terms of religious, cultural,
political, and associational structures.158
In particular, such
Id.
154 See NIEZEN, supra note 56, at 6. Beyond its existence as a constructed legal
category, the term “indigenous peoples” does have traction as a reference point
and symbol for indigenous communities with respect to their shared experiences.
Today, the term is both a fragile legal concept and the indefinite,
unachievable sum of the historical and personal experiences of those
gathered in a room who share, at the very least, the notion that they have
all been oppressed in similar ways for similar motives by similar state
and corporate entities.
Id. at 4.
Id. at 2–3.
See Kymlicka, supra note 152, at 4 (referencing the U.N. Working Group on
Minorities and Working Group on Indigenous Populations’ explanation that
“indigenous peoples,” as opposed to “minorities,” seek “institutional
separateness,” the assertion of “collective rights,” and “self-government”).
157 Id.
155
156
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distinctiveness is highlighted in the context of indigenous peoples’
communal, religious, and cultural ties to their ancestral lands and
resources.159
Through their participation, indigenous peoples have also
appropriated the term “peoples.” During the ILO process of
revising ILO Convention 107, state representatives particularly
contested references to the term “peoples.”160 However, during the
drafting of ILO Convention 169, indigenous peoples advocated for
use of the term “peoples” versus “populations” because the term
“peoples” represented a sense of collective identity shared by such
communities.161 State governments, however, objected to the term
“peoples” because it was tied to the concept of self-determination
under the international law of decolonization, which allowed for
independent statehood.162 In the context of ILO Convention 169,
the debate resulted in compromise: the term “peoples” was
adopted with the caveat that it would not trigger the rights
traditionally accorded to “peoples” under international law.163
Nevertheless, use of the term “peoples” today reflects the
original intent of many indigenous advocates: it reflects core
158 See also Amelia Cook & Jeremy Sarkin, Who is Indigenous?: Indigenous
Rights Globally, in Africa, and Among the San in Botswana, 18 TUL. J. INT’L & COMP. L.
93, 106 (2009) (noting that while defining who constitutes indigenous peoples is a
complex and difficult question, common usage generally refers to a subset of
culturally distinct persons who share a similar background, religion, sense of
kinship and ties to ancestral lands).
159 See Kymlicka, supra note 152, at 4 (quoting Erica-Irene Daes’s description
of the “ideal” indigenous group as one that is aboriginal to the land they currently
occupy, perpetuating a distinct cultural, social, and political identity); U.N. Econ.
& Soc. Council, Comm’n on Human Rights, Sub-Comm’n on Promotion & Prot. of
Human Rights, Working Paper on the Relationship and Distinction Between the Rights
of Persons Belonging to Minorities and those of Indigenous Peoples, U.N. Doc.
E/CN.4/Sub.2/2000/10 (July 19, 2000) (prepared by Asbjorn Eide & Erica-Irene
Daes), available at http://www.unhchr.ch/Huridocda/Huridoca.nsf/%28Symbol
%29/E.CN.4.Sub.2.2000.10.En?Opendocument (asserting that “rights to land and
natural resources” are “core elements” in defining the rights of “indigenous
peoples,” whereas they do not pertain to “minorities”).
160 See ANAYA, supra note 4, at 59–60 (noting that state governments contested
using the term “peoples” to identify the beneficiaries of ILO Convention No. 169
because of its connection with the dotrine of self-determination under
international law, “which in turn has been associated with a right of independent
statehood”).
161 Id.
162 Id.
163 See RODRÍGUEZ-PIÑERO, supra note 5, at 317 (noting that “sensitive issues
such as the compromise over the term ‘peoples’ . . . were negotiated in private, in
closed-door sessions from which indigenous representatives were barred”).
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normative values of collective identity and continued communal
existence and survival. The substantive scope of the term has been
differentiated from its remedial prescriptions under the
international law of decolonization: constituting an indigenous
“peoples” need not necessarily effectuate the remedial prescription
of independent statehood.164 Rather, an indigenous community
may exercise self-determination collectively as a matter of human
rights. In this context, the exercise of self-determination is much
more fluid and context-specific; it ranges from the exercise of
internal, communal decision-making to territorial secession.165
What is ultimately being protected through the right to selfdetermination is indigenous peoples’ way of life, including the
range of indigenous peoples’ religious, cultural, political, and
associational orders and practices.
Finally, indigenous peoples have advocated for purposeful
ambiguity in the application of the “indigenous peoples”
category.166 Whether the category should be subject to a tailored
definition that specifies circumstances of applicability has been the
subject of debate.167 Some indigenous advocates have proposed
that leaving the category purposefully ambiguous reflects
indigenous peoples’ communal ability to self-identify and
preserves respect for such determinations.168 Ultimately, reference
to the contemporary “indigenous peoples” category presently
appears in binding conventions,169 standard-setting documents,170
164 See ANAYA, supra note 4, at 60 (discussing the comprise to use the term
“peoples” to indentify the beneficiaries of ILO Convention 169 with the caveat
that a provision be added so that such term would not confer a right of
independent statehood).
165 See generally id. at 97–184 (discussing the principle of self-determination ).
166 See NIEZEN, supra note 56, at 18 (proposing that “[i]ndigenous delegates to
international meetings have often expressed the idea that a precise, legal
definition of the term ‘indigenous’ would impose standards or conditions for
participation in human rights processes that would be prejudicial to their
interests”).
167 See Wiessner, supra note 38, at 110–15 (discussing the debate over whether
the category “indigenous people” should reflect a more flexible standard and if
the absence of a formal definition is desirable); Karin Lehmann, To Define or To
Not Define—The Definitional Debate Revisited, 31 AM. INDIAN L. REV. 509 (2007)
(presenting the arguments for and against creating a definition, and examining
the difficulties inherent in the process of defining “indigenous peoples”).
168 See ANAYA, supra note 4, at 60 (noting that use of the term “peoples” did
not “limit the meaning of the term”) (internal quotation marks omitted).
169 See,
e.g., ILO Convention 169, supra note 54, at 1384, pmbl.
(“Considering . . . developments in the situation of indigenous and tribal peoples
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reports of various human rights treaty compliance bodies,171 and in
the decisions of the Inter-American Commission on Human
Rights172 and the Inter-American Court of Human Rights.173
Whether in these or additional documents, the term bears indicia
of what indigenous peoples have identified as their own core
norms and values. It serves as a point of departure for the
triggering of indigenous peoples’ human rights.
in all regions of the world . . . and . . . [r]ecognising the aspirations of these
peoples to exercise control over their own institutions, ways of life and economic
development . . . .”).
170 See, e.g., Proposed American Declaration on the Rights of Indigenous
Peoples, Inter-Am. Comm’n H.R., 1333rd mtg., 95th sess., OEA/Ser.L/V/II.95,
doc. 6 (1997), available at http://www.cidh.org/annualrep/96eng/chap.4.htm
(revising the scope of the declaration to indigenous peoples); UNDRIP, supra note
65, pmbl. (recognizing and reaffirming “the urgent need to respect and promote
the inherent rights of indigenous peoples”). For a current record of the status of
the Proposed American Declaration on the Rights of Indigenous Peoples, see
Working Group to Prepare the Draft American Declaration on the Rights of Indigenous
People, PERM. COUNCIL OF THE ORG. OF AM. STATES, http://www.oas.org/consejo
/CAJP/Indigenous%20documents.asp (last visited Oct. 30, 2010).
171 See, e.g., U.N. Econ. & Soc. Council, Comm’n on Human Rights, SubComm’n on Prevention of Discrimination & Prot. of Minorities, Working Group
on Indigenous Populations, Standard-Setting Activities: Evolution of Standards
Concerning the Rights of Indigenous People, 14th sess., July 29–Aug. 2, 1996, U.N.
Doc. E/CN.4/Sub.2/AC.4/1996/2 (June 10, 1996) (recommending that a fairminded body be entrusted to implement a declaration of indigenous peoples’
rights); U.N. Econ. & Soc. Council, Comm’n on Human Rights, Sub-Comm’n on
Prevention of Discrimination & Prot. of Minorities, Working Group on Indigenous
Populations, Standard-Setting Activities: Evolution of Standards Concerning the
Rights of Indigenous People – New Developments and General Discussion of
Future Action, 13th sess., July 24–28, 1995, U.N. Doc. E/CN.4/Sub.2
/AC.4/1995/3 (June 21, 1995) (noting that “historically speaking, indigenous
peoples have suffered from definitions imposed by others” and providing that the
objective and subjective criteria identified by Martinez Cobo in his Study of the
Problem of Discrimination Against Indigenous Populations, “are sufficient to
determine whether a person or a community is indigenous or not”); Special
Rapporteur of the Sub-Comm’n on Prevention of Discrimination and Prot. of
Minorities, Study of the Problem of Discrimination Against Indigenous Populations:
Conclusions, Proposals and Recommendations, para. 379, U.N. Doc.
E/CN.4/Sub.2/1986/7/Add.4 (March 1987) (by José R. Martinez Cobo)
(providing a preliminary, working analysis of the concept of indigenous peoples
and commenting that “[i]ndigenous communities, peoples and nations are those
which [have] a historical continuity with pre-invasion and pre-colonial societies
that developed on their territories”).
172 See, e.g., cases cited supra note 151 (citing various petitions by indigenous
peoples to the Inter-American Commission on Human Rights).
173 See generally Mayagna (Sumo) Awas Tingni Cmty v. Nicaragua, Judgment,
2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001) (involving a petition by
indigenous communities to enjoin construction and logging “exploitation” on
indigenous lands).
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Second, indigenous peoples have also contributed
substantively to the creation of a well-established body of
indigenous peoples’ international human rights. Indigenous
peoples have been able to translate contemporary claims into
human rights through their engagement of human rights
discourse.174 They have participated in informal and formal normgenerating and decision-making processes that impact the
substantive contours of human rights.175
More specifically, there are two related veins in which an
acknowledgement of indigenous peoples’ distinctiveness serves to
translate indigenous peoples’ claims into human rights. In one
vein, indigenous peoples’ distinctive attributes are joined with
precepts of non-discrimination as a basis for recognizing
indigenous peoples’ rights to self-determination and other rights
necessary to otherwise protect the survival and flourishing of
indigenous peoples’ way of life.176 Examples of such particularized
rights include rights to maintain religious and cultural traditions,
rights to maintain distinct governance structures, and rights to
maintain distinct associational structures. In a related vein,
indigenous peoples’ distinctiveness also serves as a basis for
recognizing their rights to traditional lands and resources.177
Certainly, indigenous peoples’ ability to own, occupy, control, and
use their traditional lands and resources may protect the survival
and flourishing of their way of life. However, indigenous peoples’
claims of distinctiveness in this vein also serve as a basis for
independently recognizing indigenous peoples’ ability to own,
occupy, control, and use their traditional lands and resources.
See supra notes 73–79 and accompanying text (recounting how indigenous
peoples have utilitized human rights as a platform for their claims).
175 See supra Part 3.3 (providing evidence of indigenous peoples’ participation
in the creation of “hard” and “soft” law).
176 See Anaya, supra note 77, at 29–38 (applying the universal right of selfdetermination to indigenous peoples and noting that many states have “resisted
an express association of the term ‘self-determination’ with indigenous peoples in
standard-setting exercises in the U.N. and ILO”); Iorns, supra note 77, at 289, 306–
07 (analyzing the status of indigenous peoples according to positive international
law and the implications of both the instrumental and inherent theories of selfdetermination).
177 See Anaya, supra note 69, at 240–43 (suggesting that human rights
arguments and accounts of “illegitimate wresting of historical sovereignty” have
ultimately “forge[d] an understanding that indigenous peoples have suffered, not
just discrete episodic acts of neglect or even brutality by state actors, but also more
systemic oppression as a result of state institutional arrangements that have been
imposed on them and have failed to accommodate their cultural patterns”).
174
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Because indigenous peoples have identified a distinctive
communal, cultural, and spiritual relationship with the land they
have occupied since time immemorial, they possess a human right
to own, occupy, control, and use such land and its resources.
Particularly in this latter vein, where indigenous peoples’
distinctiveness serves as a basis for the recognition of their human
right to communally own, occupy, control, and use traditional
lands and resources, grafting of the core normative precepts
identified by indigenous peoples into human rights law is evident.
A stark example of indigenous peoples’ strategic identification of
core normative precepts and uploads of such precepts into
international human rights law is present in the decisions
emanating from the Inter-American Commission on Human Rights
and Inter-American Court of Human Rights regarding indigenous
peoples’ human right to property.178 These bodies have asserted
that, when applied to indigenous peoples, both substantive and
procedural aspects of the human right to property must be based
on the recognition of indigenous peoples’ own land tenure
systems.
For example, in the case of Mayagna (Sumo) Awas Tingni
Community v. Nicaragua, the Inter-American Court of Human
Rights found that Nicaragua violated the rights of the Awas Tingni
to use and enjoyment of their property under Article 21 of the
American Convention by “grant[ing] concessions to third parties to
utilize the property and resources located in an area which could
correspond, fully or in part, to the lands which must be delimited,
demarcated, and titled [as Awas Tingni lands].”179 In reaching this
conclusion, the Court recognized that the Awas Tingni’s rights to
ownership, occupancy, use, and development of their ancestral
lands and resources stemmed from the Awas Tingni’s own land
tenure systems:
[T]he close ties of indigenous people with the land must be
recognized and understood as the fundamental basis of
their cultures, their spiritual life, their integrity, and their
economic survival . . . . [R]elations to the land are not
merely a matter of possession and production but a
material and spiritual element which they must fully enjoy,
See, e.g., Mayagna (Sumo) Awas Tingni Cmty v. Nicaragua, Judgment,
2001 Inter-Am. Ct. H.R. (ser. C) No. 79, para. 153 (Aug. 31, 2001).
179 Id. para. 153.
178
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even to preserve their cultural legacy and transmit to future
generations.180
Likewise, in the case of Maya Indigenous Communities of the Toledo
District v. Belize, the Inter-American Commission on Human Rights
incorporated its earlier analyses and those of the Court regarding
the distinctive core normative precepts associated with indigenous
peoples’ land tenure systems:
[I]ndigenous peoples enjoy a particular relationship with
the lands and resources traditionally occupied and used by
them, by which those lands and resources are considered to
be owned and enjoyed by the indigenous community as a
whole and according to which the use and enjoyment of the
land and its resources are integral components of the
physical and cultural survival of the indigenous
communities and the effective realization of their human
rights more broadly.181
Furthermore, in the more recent case of Saramaka People v.
Suriname, the Inter-American Court of Human Rights again
acknowledged the core normative precepts that inform indigenous
peoples’ land tenure systems: “Land is more than merely a source
of subsistence for them; it is also a necessary source for the
continuation of the life and cultural identity of the Saramaka
people. The lands and resources of the Saramaka people are part
of their social, ancestral, and spiritual essence.”182
Therefore, it is undeniable that the category “indigenous
peoples” and its derivative human rights framework have been
shaped by the transnational participation of communities of first
peoples.
Indigenous peoples have strategically infused
international human rights law with an alternative world-view.
Multiple international bodies that address human rights generally
have developed and addressed human rights norms specifically
applicable to indigenous peoples. These bodies include the United
Nations Human Rights Council (previously Commission), the
Id. para. 149.
Maya Indigenous Communities of Toledo Dist. v. Belize, Case 12.053,
Inter-Am. Comm’n H.R., Report No. 40/04, OEA/Ser.L./V/II/122, doc. 5, ¶ 114
(2004) (footnotes omitted).
182 Saramaka
People v. Suriname, Preliminary Objections, Merits,
Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, ¶64 (Nov.
28, 2007) (footnotes omitted).
180
181
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United Nations Human Rights Committee, the United Nations
Committee on the Elimination of Racial Discrimination, the
Organization of American States Inter-American Commission on
Human Rights, and the Inter-American Court of Human Rights.
These bodies have reaffirmed the individual and collective rights
of the world’s indigenous peoples, and ultimately acknowledged
the need to protect their way of life.
4.
IMPLICATIONS OF INDIGENOUS PEOPLES’ PARTICIPATION IN
INTERNATIONAL LAWMAKING
For the most part, analyses of non-state actor participation in
international lawmaking focus on the implications of such
participation with respect to the international legal regime.
However, conceptualizing indigenous peoples’ participation in
international lawmaking as participation by a traditionally
marginalized community in identity building and rights formation
broadens the scope of normative inquiry beyond what such
participation does to, or for, international law to what such
participation does to, or for, indigenous peoples. Indigenous
peoples’ participation not only prompts normative questions
regarding the relationship between such participation and the
constitution of international law, but also raises normative
questions regarding the relationship between such participation
and the continued advancement of indigenous peoples’ claims.
4.1. Implications for International Law
Indigenous peoples’ participation, like the participation of
other non-state actors in international lawmaking, contests a statecentered narrative and thereby raises normative questions
regarding the proper formation and content of international law.
Specifically, an acknowledgement of indigenous peoples’
participatory role in international lawmaking raises the following
normative questions: (1) Who ought to participate in international
lawmaking? On what basis is indigenous peoples’ participation in
international lawmaking processes justified? (2) What normative
precepts should be reflected in the content of international law?
Should the core normative precepts strategically identified by
indigenous peoples be incorporated in the formulation of
international human rights as applicable to indigenous peoples?
Indigenous peoples’ participation challenges the orthodox,
state-centered narrative of international lawmaking. It illustrates
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how international norm-building and decision-making processes
that shape the content of international law are not merely functions
of state input and consent. Indigenous peoples’ participation
contributes a discrete piece to broader understandings of how
international lawmaking occurs. Indigenous peoples participate in
international lawmaking by way of uploading local communal
norms and values.
Such uploading takes place through
participation in informal and formal human rights normgenerating and decision-making processes.183
An acknowledgement of indigenous peoples’ participatory role
prompts normative questions regarding the proper formation and
substantive content of what could bear the emblem of international
law. One justification for non-state actor participation in the
formation of international law is that such participation may
contribute to greater democratic global governance, which is often
tied to notions of “good governance” and “legitimacy” in
governance.184 Democratic global governance involves, in part, the
decentralization of the state in norm and law creation, and thereby,
a facilitation of input by non-state actors.185 In the context of
human rights, principles of democratic global governance reflect
an acknowledgment that the creation or modification of legal
precepts that guide state behavior regarding the observance of
human dignity should, at least in part, involve consideration of the
views of those communities the principles are designed to impact.
183 See supra notes 25, 38–40 and accompanying text (discussing the role of
indigenous peoples in international lawmaking and the concept of “bottom-up”
lawmaking); see also Miranda, supra note 8, at 423 (proposing that “indigenous
peoples have been successful in strategically identifying core normative precepts
derived from their traditional land tenure systems and uploading such precepts at
the international scale”).
184 See Falk, supra note 61, at 250 (discussing the idea of global governance
and, in part, the role of civil society in its achievement); Mertus, Transnational Civil
Society, supra note 11, at 1351–53 (distinguishing the concept of “governance” from
“government,” and discussing indicia of “good governance”).
185 See GOVERNANCE: THE WORLD BANK’S EXPERIENCE vii (1994) (“Good
governance is epitomized by predictable, open and enlightened policy making
(that is, transparent processes); a bureaucracy imbued with a professional
ethos . . . and a strong civil society participating in public affairs; and all behaving
under the rule of law.”); see also STEVEN WHEATLEY, THE DEMOCRATIC LEGITIMACY
OF INTERNATIONAL LAW: THE ROLE OF NON-STATE ACTORS 3 (2007), available at
http://www.baselgovernance.org/fileadmin/docs/pdfs/Nonstate/PaperWheatley.pdf (“The democratic deficit of global governance is not narrowed by
electoral contestation for office and power, but by the application of the principles
of inclusion, participation and accountability.”).
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Furthermore, in such context, principles of democratic global
governance also address problems associated with states that serve
as proxies for the interests of elites, or more generally, problems
associated with the power imbalance between states and subnational communities. When viewed through this lens, the
participation of indigenous peoples and the incorporation of their
core normative precepts can be justified as a means of promoting
democratic global governance.186 Essentially, indigenous peoples’
participation in international human rights lawmaking potentially
increases the legitimacy of international human rights law and
lawmaking processes. Regardless of the debate surrounding the
propriety or challenges of exercising democratic global
governance,187 and regardless of other possible justificatory bases
for allowing indigenous peoples’ participation in international
lawmaking,188 indigenous peoples’ participation is likely to be
perceived and analyzed, at least in part, as contributing some level
of legitimacy to international human rights law and lawmaking
processes.189
186 Arguably, indigenous peoples’ core normative precepts could be taken
into account in defining the content of customary international law. See Ochoa,
supra note 11, at 143–44 (noting that individuals are “increasingly demanding a
voice in decisions that affect and determine their own value systems”).
187 See Mertus, Transnational Civil Society, supra note 11, at 1384–86 (proposing
that greater participation of voices increases democratic global governance, but
that participation in and of itself may not reflect democratic principles of
inclusivity, transparency, and accountability); Alvarez, Governing the World, supra
note 11, at 607–10 (acknowledging the potential governance gaps engendered by
inter-state organization participation).
188 See Bluemel, supra note 13, at 57–58 (arguing that “improperly allowing
participation may serve to negatively impact the regime as well as the localized
ethnic group”). Furthermore:
[p]articipation should be highly context-dependent and cannot be based
on a simple analysis of the functional needs of a regime, but must
evaluate the ability of the group to meet those functional needs and other
normative values held by the regime which might counsel civil society
participation beyond the mere functional needs of the regime.
Id. at 61.
189 Arguments can be made, however, that indigenous peoples’ participation
constitutes an illegitimate attempt at engaging the international system when
efforts at the national level have proved unsuccessful. In other words, indigenous
peoples’ participation may be perceived and analyzed as an inappropriate
“second bite” at the apple. Furthermore, the incorporation of indigenous peoples’
core normative precepts into human rights law may be perceived and analyzed as
leading to the inappropriate acknowledgment of “special rights.” Nevertheless,
given the continuously increasing status and rights of indigenous peoples’ under
international law, it is unlikely that these and other similar arguments will bear
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4.2. Implications for the Continued Advancement of Indigenous
Peoples’ Claims
The consequences of indigenous peoples’ participatory role in
international lawmaking are overwhelmingly positive with respect
to the continued advancement of indigenous peoples’ claims.
While not a perfect process, indigenous peoples’ participation in
international lawmaking has resulted in the reconstitution of
human rights precepts when applied to indigenous peoples’
circumstances.
It is difficult to suggest that such substantive reformulation of
human rights precepts as applied to indigenous peoples is simply
symbolic. It is even more difficult to assert that the reformulation
of these precepts is a diversion without any material impact—that
the human rights discourse and its system of implementation and
enforcement is incapable of producing any meaningful progressive
social change. Furthermore, it would be a stretch to pronounce
that the reformulation of human rights precepts is simply a rehash
of traditional liberal ideology with a new gloss that ultimately will
continue to undermine the position of indigenous peoples.
However, it is equally difficult to celebrate the phenomenon of
a traditionally marginalized community’s participation in
international lawmaking without a measure of pause. The moment
of pause is not so much a moment of paralyzing skepticism, but
rather a moment of reflection regarding the continuing challenges
to actualizing the full potential of such a phenomenon. The
infusion of an “indigenous peoples” category into international
law and the uploading of indigenous peoples’ core normative
precepts into international human rights law continue to be
constrained by limits inherent in the discourse of human rights and
by the structural limitations of the human rights framework. There
continues to be a gap between the participatory efforts of
indigenous communities at the international level and the
realization of their claims on-the-ground claims.190 This is not a
critique of indigenous peoples’ decision to participate in
international human rights lawmaking, but rather an assessment of
how the human rights discourse and framework of
significant traction. See Cook and Sarkin, supra note 158, at 111–13 (exploring the
debate of whether “indigenous rights represent ‘special privileges’”).
190 See id. at 98 (proposing that “advances in rhetoric have not led to
improvements in the ability of indigenous groups worldwide to benefit from the
protections that international law supposedly affords them”).
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implementation and enforcement may place some limits on the
ability of indigenous peoples to reap on-the-ground benefits of
such participation.191
At this juncture, how can the human rights program serve to
propel a more comprehensive operationalization of claims? How
can the success that has been achieved be capitalized upon for even
greater long-term gains? These questions are not meant to detract
from the immense progress that has been made by, and on behalf
of, indigenous peoples. While indigenous peoples have reaped
positive consequences from their participatory role in shaping the
substantive contours of international human rights norms, it is
nevertheless important to reflect on the possible challenges in the
continued path toward progress.
Certainly, the participation of indigenous peoples in
international human rights lawmaking has had positive
implications for the continued advancement and realization of
indigenous peoples’ claims. First, the creation of an indigenous
identity and the translation of claims into human rights has
normalized and provided moral bite to local activism and
resistance from indigenous communities. Second, the infusion of
international law with an “indigenous peoples” category and
indigenous peoples’ normative precepts has triggered the
recognition of important rights, such as indigenous peoples’ right
to self-determination192 and indigenous peoples’ rights to
ownership, occupancy, control, and use of their traditional lands
and resources.193 The recognition of such rights has enabled
191 See David Kennedy, The International Human Rights Movement: Part of the
Problem?, 15 HARV. HUM. RTS. J. 101, 107–25 (2002) (identifying and addressing the
potential “down sides” of the human rights project).
192 See UNDRIP, supra note 65, arts. 3–4 (recognizing indigenous peoples’
rights to self-determination and self-government); see also Anaya, supra note 77, at
29–30 (“[S]elf-determination is widely held to be a norm of general or customary
international law, and arguably jus cogens (a peremptory norm).”).
193 See UNDRIP, supra note 65, arts. 10, 25–29 (declaring that indigenous
peoples may not be removed or relocated from their land without “free, prior and
informed consent,” “just and fair compensation,” and preferably, “the option of
return”); see also ANAYA, supra note 4, at 141–48 (discussing developments in
international law—particularly the standards embraced by ILO Convention 169—
affecting the treatment of indigenous peoples’ rights to lands and resources);
Anaya & Williams, supra note 38, at 41–48 (“[T]he existence of indigenous
property regimes does not depend on prior identification by the state, but rather
may be discerned by objective evidence that includes indigenous peoples’ own
accounts of traditional land and resource tenure.”); Wiessner, supra note 38, at 109
(concluding that indigenous peoples are, “in principle, entitled to demarcation,
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indigenous peoples to seek recourse at the international level,
which, at times, has resulted in the operationalization of claims.
Third, at a minimum, indigenous peoples’ participation has
created opportunities for conversation between indigenous peoples
and state representatives regarding indigenous peoples’ claims.
Nevertheless, indigenous peoples’ participation sheds light on
the constraints within which indigenous peoples—and potentially
other traditionally marginalized communities—operate for
recognition of claims under international law. As a means of
analyzing the limits inherent in the discourse of international
human rights and the structural limitations of the human rights
framework, this part focuses on indigenous peoples’ claims to
ownership, occupancy, use, and control of their ancestral lands and
resources. Discursive and structural limitations are more probable
and problematic where the human rights discourse operates to
allocate lands and resources.
Indigenous peoples’ engagement in the discourse of human
rights has resulted in the translation of indigenous peoples’ claims
to ownership, occupancy, use, and control of their traditional lands
and resources into particularized rights. These particularized
rights include:
1) the right to legal recognition, demarcation, and titling of
lands that indigenous peoples traditionally occupy; 2) the
right to use, enjoyment, control, and development of such
lands irrespective of formal title; 3) the right, at a minimum,
to the use of natural resources associated with such lands;
and 4) the right, at a minimum, to prior meaningful
consultation when a state government seeks to engage in
activities upon such lands or in activities that affect
indigenous rights over such lands.194
Indigenous peoples, through the processes described, have
contributed to the identification and substance of these rights.
These rights acknowledge the need to protect indigenous peoples’
distinct communal, spiritual, and cultural ties to their ancestral
lands and resources. They are reflected in multiple documents,
including the U.N. Declaration on the Rights of Indigenous
ownership, development, control, and use of the lands which they have
traditionally owned or otherwise occupied and used”); Miranda, supra note 56, at
148–50 (discussing the development of indigenous peoples’ land rights).
194 Miranda, supra note 56, at 149–50 (footnotes omitted).
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Peoples.195 Moreover, these rights are now arguably part of
customary international law.196 Nevertheless, in the context of
extractive industry projects, such as oil drilling or mining, these
rights are often violated by collaborative ventures between states
and transnational corporate actors.197
Indeed, the human rights program has evolved to take into
account indigenous peoples’ claims to their traditional lands and
resources. Human rights bodies emphasize indigenous peoples’
distinctiveness as a group as a reason for adapting human rights of
general applicability to protect indigenous peoples’ ties to their
lands and resources. In effect, the discourse operates to allocate
those lands and resources to indigenous communities vis-à-vis
claims by states or non-state actors.
Specifically, there are three primary discursive limitations to
the continued advancement and realization of indigenous peoples’
claims. First, the engagement of the human rights discourse has
the potential of leading to an essentialized indigenous identity.
Because the human rights discourse is not directly aimed at
addressing the oppressive vestiges of colonization, indigenous
peoples have had to formulate claims stemming from their status
as colonized peoples into arguments for the recognition and
protection of human rights. Efforts to maximize the gains of
human rights arguments that advance the claims of indigenous
peoples as a whole have the potential of leading to the conflation of
local realities and essentialization of local diversity. Over the long
term, such a result could hinder the operationalization of
indigenous peoples’ claims to the extent that global advocacy
efforts and platforms for the continued advancement of indigenous
peoples’ claims fail to be reflective of, and accountable to, local
diversity. In other words, how can discursive gains continue to be
helpful if, over time, real diversity among local communities fails
to be reflected? Ultimately, over the long term, continuing
advocacy efforts should maximize the gains already made to
account for diversity among local indigenous communities.
See UNDRIP, supra note 65, arts. 10, 25–29 (referencing indigenous
peoples’ rights to their traditional lands and resources).
196 See Miranda, supra note 56, at 148–50.
197 See id. at 154–60.
195
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Second, the engagement of the human rights discourse may
promote a fixed indigenous identity.198 Pursuant to the human
rights discourse, indigenous peoples are not recognized as
possessing attributes of inherent sovereignty pre-dating the
modern nation-state, but rather, are recognized as deserving
human rights protection because of their distinct religious,
cultural, and political ways of life.199 This result raises the issue of
whether it will be sufficient for indigenous peoples to continue to
gain redress through human rights arguments that may be
implicitly couched in fixed notions of religious, cultural, and
political difference. In other words, will indigenous peoples be
perpetually called upon to perform a fixed identity in order to
pursue contemporary claims?
For example, the continued
realization of indigenous peoples’ contemporary claims to
ownership, occupancy, use, and control of ancestral lands and
resources may become problematic where an indigenous
community seeks to benefit from commercial activities that may
not be in line with conceptions of their religious and cultural ties to
those lands. Accordingly, in moving forward, particular attention
should be devoted to how arguments that translate indigenous
peoples’ contemporary claims into human rights can accommodate
a more fluid conception of indigenous difference.
Third, engagement of the human rights discourse may promote
imagined or real struggles for a scarcity of resources among
different identity groups in a given locality.200 Because pursuant to
the human rights discourse, indigenous peoples are recognized as
deserving human rights protection because of their distinct
religious, cultural, and political way of life, indigenous peoples’
198 My argument is not that indigenous peoples actually have a fixed identity,
or that indigenous peoples themselves should not be the ultimate decision-makers
with respect to the development of their culture. Rather, my argument is a
critique regarding the potential of international human rights discourse to force
indigenous communities into advocacy positions that require an emphasis on
seemingly static and one-dimensional religious and cultural ties to ancestral
lands.
199 See RODRIGUEZ-PIÑERO, supra note 5, at 340 (suggesting that indigenous
peoples’ cultural distinctiveness constitutes a source of indigenous peoples’
rights); see also ANAYA, supra note 4, at 141–42 (emphasizing that “property is a
human right” and “the fundamental norm of nondiscrimination requires
recognition of the forms of property that arise from the traditional or customary
land tenure of indigenous peoples”).
200 My argument is not that indigenous peoples are bearers of some kind of
“special privilege.” Rather, my argument critiques the potential of the human
rights discourse to create an illusion of special privilege.
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access or rights to land and surface or sub-surface resources are
based on their distinct religious and cultural ties to land. Because
the human rights discourse is not equipped to answer the question
of what constitutes a just allocation of scarce resources, the
recognition of indigenous peoples’ distinct rights to such resources
creates an illusion of “special privilege” vis-à-vis other marginalized
local groups (ethnic or racial minorities, the rural poor, refugees)
that could ignite a struggle for such resources. This result is
merely an illusion of “special privilege” because the protections
offered by the human rights discourse to indigenous peoples are in
line with what non-marginalized communities consider a given—
security over lands and resources. It raises the issue of whether it
will be sufficient for indigenous peoples to continue to gain redress
through human rights arguments that may seemingly pit
indigenous peoples against other traditionally marginalized
communities. In other words, is this potential opposition simply
an inevitable externality of producing a legal construction that
functions within an already limited model of rights for
traditionally marginalized communities? How can indigenous
peoples capitalize on the human rights discourse while perhaps
leaving open opportunities for coalition building with other
traditionally marginalized communities? Therefore, in moving
forward, particular attention should be paid to how advocacy
efforts can address a potential illusion of special privilege.
Indigenous advocacy efforts could engage other traditionally
marginalized communities, and even states, in a dialogue about
the just allocation of scarce resources, in ways that nevertheless
account for indigenous peoples’ history, preservation of human
dignity, and continued cultural survival.
Furthermore, there are structural limitations to the continued
advancement and realization of indigenous peoples’ claims. First,
indigenous peoples’ participatory role in international lawmaking
within the human rights regime continues to take place within a
fragmented lawmaking framework. Even if contradictory, preexisting international norms could be reconciled with the
contemporary indigenous rights framework, the international
lawmaking machinery continues to operate within separate, often
impermeable, boxes. Accordingly, because indigenous peoples do
not have significant access to participate in international
lawmaking within what have been structured as independent
spheres of international law, the on-the-ground impact of their
international human rights lawmaking may be somewhat limited.
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This broader contradiction within distinct realms of international
law may continue to pose limits to indigenous peoples’ on-theground progress.
For example, in the context of extractive industry projects on
indigenous lands, indigenous peoples’ human rights over their
ancestral lands and resources often collide with pre-existing
international law norms and other norms that continuously evolve
under international trade and investment law.201 Indigenous
peoples’ rights over ancestral lands and resources exist outside of,
and arguably in subordination to, other norms of international law
such as state sovereignty over natural resources and states’ rights
to development. Moreover, corporate actors that benefit from
state-granted concessions may be considered to have more rights
over lands and resources than indigenous peoples that occupy
such lands. Accordingly, advocacy efforts should also take the
form of greater participation in other international lawmaking
forums, particularly those forums that include norm-generation
and decision-making regarding matters tied to international
economic transactions.202
Second, while indigenous peoples’ lawmaking takes place at
the international level, implementation and enforcement remains
mediated through the state. It may be more feasible for states to
accede to indigenous peoples’ participatory role in international
lawmaking than for states to implement and enforce the resulting
legal principles, especially when such principles are at odds with
the state’s other international obligations. Although various nonstate actors may participate in international lawmaking, in
different spheres and in contradictory ways, the state remains
largely at the center of implementation and enforcement of
international legal principles. In the context of extractive industry
projects, the state must reconcile its own interest in economic
development, and sometimes even contradictory obligations to the
corporate actor involved in the extractive industry project, with
indigenous peoples’ rights to their ancestral lands and resources.
As a consequence of states’ continued mediation of human rights
implementation and enforcement, there is often a disconnect
See notes 142–46 and accompanying text.
For an example demonstrating that indigenous advocacy has already
started to take shape, see Application for Leave to File a Non-Party Submission,
Glamis Gold Ltd. v. United States (NAFTA Arb. Trib. 2005), available at
http://www.state.gov/documents/organization/52531.pdf.
201
202
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between indigenous peoples’ participatory role in international
human rights lawmaking and on-the-ground results.
Third, as a pragmatic matter, the construction of indigenous
identity and the production of knowledge regarding indigenous
identity and rights have the potential of being managed by
bureaucratic structures at the macro-level. Some have argued that
bureaucratic structures that not only control money and resources,
but also the production of knowledge and the generation of
ideologies need to be accountable. How can these bureaucratic
structures democratically control the means of knowledge
production and contribute equally to diverse “indigenous” voices?
Efforts to align indigenous peoples’ participation with principles of
democratic governance that focus on questions of inclusivity
within the group, transparency of group activity, and
accountability of the group may ultimately facilitate the continued
advancement of indigenous peoples’ claims.
Thus, while capitalizing on the gains already made, continued
advocacy efforts should reflect upon the potential discursive and
structural challenges to engaging the human rights regime in the
continued advancement of indigenous peoples’ contemporary
claims.
5.
CONCLUSION
While the resistance offered by the transnational movement of
indigenous peoples need not be cabined exclusively within the
discourse of human rights, the use of such discourse evidences an
acceptance of the discourse’s limits in light of potentially valuable
strategic gains. Indeed, the recognition of an “indigenous peoples”
category and of a derivative framework of indigenous peoples’
human rights offers a refreshing account of rights recognition for a
traditionally marginalized community. It is also a positive account
of solidarity, intra-coalition building, and strategic prowess.
Nevertheless, imperfect implications resulting from the limits
inherent in the discourse of human rights and structural challenges
of seeking on-the-ground gains through the human rights
framework pose serious questions.
Indeed, there is a potential dissonance between the benefits of
indigenous peoples’ participation to the international law regime
and the benefits of their participation to the continued
advancement and realization of their claims. Indigenous peoples’
participation may serve to lend greater legitimacy to international
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human rights law and lawmaking processes but may not, in turn,
consistently and effectively deliver the material gains that should
follow. This result is particularly problematic in the context of
indigenous peoples’ participation because such participation is not
focused on the creation of regulations, but rather on the
formulation of rights that may ultimately serve to shift power
structures in ways that alleviate conditions of subordination.
Accordingly, the continued path to progress requires further
reflection on how to alleviate such dissonance through meeting the
outlined, and possibly additional, discursive and structural
challenges.
One possible path may involve the nature of advocacy that
continues to shape international human rights law applicable to
indigenous peoples. To that end, as an initial matter, indigenous
peoples’ advocacy efforts that engage the discourse of human
rights may benefit from argumentation that recognizes the
potential essentializing function of human rights discourse or the
potential of such discourse to promote a fixed indigenous identity.
Also, advocacy efforts that engage the discourse of human rights
may also benefit from addressing broader normative questions
regarding a just allocation of land and natural resources that
impact
other
traditionally
marginalized
communities.
Additionally, indigenous advocacy efforts should not only
continue to focus on shaping the discourse of human rights, but
should also address other discourses that intersect with, and at
times may be at odds with, the discourse of human rights.
Furthermore, indigenous peoples may turn their attention to
playing an increasingly greater role in not only the processes of
international lawmaking, but also in the processes of
implementation and enforcement.
Moreover, as indigenous
peoples continue to participate in the production of a body of
international norms and practices regarding their contemporary
status and rights, attention should also be given to maintaining
structures that allow diverse indigenous “voices” to participate in
such processes.
While building on the gains already made through indigenous
peoples’ participation in international lawmaking, identifying and
working through these challenges is one further step in the
continued path toward progress. Ultimately, an account of
indigenous peoples’ participation that reflects on these challenges
perhaps holds some promise for the use of international human
rights law as a meaningful tool of social transformation.